KATHRYN H. VRATIL, District Judge.
Ricky Leon Farmer appeals the final decision of the Commissioner of Social Security to deny disability insurance benefits and supplemental security income (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1281-1385. For reasons set forth below, the Court finds that the final decision of the Commissioner should be affirmed.
Plaintiff was born in 1964. On August 19, 2009, plaintiff applied for disability insurance benefits under Title II and for SSI under Title XVI alleging a period of disability beginning October 1, 2003. Tr. 119-25, 126-33. The agency denied plaintiff's application initially and upon reconsideration. On January 25, 2012, following a hearing, an administrative law judge ("ALJ") found that plaintiff was not disabled as defined in the Social Security Act. Tr. 22. On July 26, 2013, the Appeals Council denied plaintiff's request for review. Tr. 1-3. The ALJ decision thus stands as the final decision of the Commissioner.
The following is a brief summary of the evidence presented to the ALJ.
From October 10 through 12, 2003, plaintiff received inpatient treatment at Integris Bass Baptist Health Center for a duodenal ulcer. He was re-admitted for inpatient care from October 13 through October 18, 2003. Since then he has suffered occasional flare-ups of the ulcer.
On July 11, 2009, plaintiff sought psychiatric and drug counseling at the Mental Health Center of East Central Kansas ("Mental Health Center"). Tr. 301. He reported that his drugs of choice were marijuana and alcohol, which he had last used two weeks earlier. Tr. 302.
On October 20, 2009, plaintiff looked tired and had a scattered thought process and depressed mood and affect. Tr. 413. For the next several months, treatment providers at the Mental Health Center recorded normal findings, except for depressed mood and tired affect on January 5, 2010. Tr. 404, 407, 409, 411. His treating mental health nurse practitioner prescribed Seroquel and Lexapro to treat his depression and other mental health issues.
On June 15, 2010, Philip Rosenshield, Ph.D., a state agency psychologist, opined that plaintiff's psychological impairment was not severe. Tr. 376. On December 22, 2010, Sallye Wilkinson, Ph.D., affirmed Dr. Rosenshield's opinion. Tr. 428.
On July 29, 2010, plaintiff returned to the Mental Health Center, exhibiting a depressed mood and flat affect. Tr. 402. On August 5, 2010, his treating nurse practitioner prescribed Abilify. Two weeks later, he reported that Abilify was not working and that it made him more irritated and upset. Tr. 401.
On March 29, 2011, the Mental Health Center treatment notes indicate that plaintiff was unkempt and displayed a depressed mood. Tr. 552. On July 19, 2011, the Mental Health Center discharged plaintiff because he had stopped going to appointments. Tr. 551.
On May 2, 2010, plaintiff injured himself while lifting a truck battery. On May 3, 2010, Jeff Sloyer, M.D., examined plaintiff and observed tenderness between his shoulder blades, a positive ulnar compression test and a positive Tinel sign.
On June 1, 2010, Dr. Sloyer examined plaintiff and found that he had pain with range of motion, tenderness to palpation and spastic muscle bundles. He prescribed Prednisone and commented that plaintiff "is in the process of getting disability which I think it is a good plan since he is not employable at this time." Tr. 420.
On June 14, 2010, Anthony Eidelman, M.D., a pain management specialist, examined plaintiff. He found that plaintiff had slightly reduced range of motion of his neck, reduced grip strength and decreased sensation in plaintiff's hands. Tr. 356-57. He diagnosed chronic pain, cervical degenerative disc disease, cervical radiculopathy and cervical stenosis. Tr. 357. He administered an epidural steroid injection. Tr. 357. On July 12, 2010, Dr. Eidelman gave plaintiff a second injection. Tr. 397.
On July 9, 2010, Marcia Foster, M.D., a State agency physician, opined that plaintiff could perform light work with no overhead reaching.
On August 9, 2010, Dr. Sloyer reported improved range of motion and pain control with Gabapentin. Tr. 419. On August 25, 2010, Dr. Sloyer prescribed Maxalt, Demerol and Phenergan to help alleviate a migraine. Tr. 418. On September 10, 2010, plaintiff reported that his upper back pain was not controlled. Tr. 432. Dr. Sloyer found pain with range of motion, increased the dose of Gabapentin and referred plaintiff to a neurosurgeon. Tr. 432.
On December 7, 2010, an MRI of plaintiff's cervical spine revealed significant cervical degenerative disc disease and foraminal stenosis at C5 through C7. Tr. 426. On January 17, 2011, Matthew Wills, M.D., a neurosurgeon, examined plaintiff. Tr. 439-440. Dr. Wills noted diminished upper extremity strength, diminished lower extremity sensation and reduced reflexes. Tr. 440. Dr. Wills recommended a three-level cervical fusion. Tr. 440.
On February 5, 2011, Lucas Schnell, M.D., a consultative physician, examined plaintiff and observed reduced range of motion and diminished grip strength bilaterally. Tr. 450.
On February 9, 2011, plaintiff had cervical fusion surgery. Tr. 497. Dr. Wills instructed plaintiff to wear a cervical collar at all times when out of bed. Tr. 534. Two weeks after the surgery, Dr. Wills noted that plaintiff continued to have numbness in his right arm. Tr. 468.
On March 4, 2011, plaintiff fell and went to Stormont-Vail Hospital for treatment. Tr. 471. An examination revealed weakness in the arms and hands. Tr. 472. A CT scan of the cervical spine showed osteophytes between C3 and C6 in addition to foramina narrowing at C5 through C7. Tr. 473.
On April 8, 2011, Dr. Wills removed the cervical collar and directed plaintiff not to work for three months and referred him to physical therapy. Tr. 504-03. On April 19, 2011, an x-ray of plaintiff's hands revealed mild degenerative joint disease. Tr. 600.
On May 4, 2011, Carol Eades, M.D., a state agency physician, opined that plaintiff should be capable of a range of light work with no overhead reaching or depth perception within 12 months of his surgery. Tr. 508-15.
On May 10, 2011, Dr. Sloyer examined plaintiff to evaluate hand pain and numbness. Tr. 584. Dr. Sloyer noted positive Tinel and Phalen signs
On December 9, 2011, Dr. Sloyer noted that Dr. Wills recommended injections for plaintiff's pain but that plaintiff was not insured. Tr. 579. Dr. Sloyer examined plaintiff and found that he exhibited decreased range of motion. Specifically, plaintiff could move his neck only 30 to 40 per cent to either side, adduction was more limited and grip strength was weak in the right hand. Plaintiff exhibited radicular symptoms. Tr. 579. Dr. Sloyer opined that plaintiff met Listing 1.04. Dr. Sloyer indicated that plaintiff's condition would require him to walk away from a work station every 15 minutes and that he would miss more than four days of work a month. Tr. 537-540, 546.
On March 24, 2012, a CT scan of plaintiff's cervical spine revealed stable post-surgical changes. Tr. 637.
On September 5, 2012, Dr. Sloyer stated that plaintiff's had degenerative disc disease with stenosis that caused numbness and pain in both arms. Dr. Sloyer suggested that plaintiff's condition prevented competitive employment. Tr. 624.
On November 30, 2012, an MRI of plaintiff's cervical spine revealed a solid fusion with a bulge at C3-C4. Tr. 635.
In February of 2010, Dr. Alan Cornett, a consultative examiner, noted that plaintiff was blind in the left eye and had 20/200 vision in the right eye. On April 29, 2010, Dr. Michael Reynolds, another consultative examiner, found that plaintiff had 20/400 vision in the left eye and 20/60 corrected vision in the right. Tr. 345. Dr. Reynolds prescribed corrective glasses.
At the administrative hearing on January 13, 2012, plaintiff testified as follows.
Plaintiff is divorced and lives with his girlfriend. He does not drive, and when it is cold he does not get out much. He visits his parents who live next door. Tr. 34. Plaintiff spends his free time watching television.
In January of 2010, plaintiff had surgery to repair bulging disks. Tr. 45, 47. The surgery did not help, and he is in pain every day.
Plaintiff has pain in his neck and shoulders which is worse when he picks things up or tries to do chores such as vacuuming. Dr. Sloyer prescribed pain medication and plaintiff received some injections until sometime in 2011, when his medical card expired. Tr. 36. Plaintiff currently addresses the pain by moving stretching and taking Aleve, which "takes the edge off."
Plaintiff can shower and dress independently except that he needs help with buttons. He does some household chores including washing dishes; he does not do laundry, grocery shopping or yard work.
Plaintiff can sit for about 15 minutes before he has to get up, and can stand for 15 to 20 minutes and walk about 30 feet before he has to rest. He can lift about ten pounds comfortably. After doing something around the house for 20 or 30 minutes he has to take a break for 15 or 20 minutes. Tr. 39-42. During a full work day he would need to rest at least ten times. Tr. 42.
Plaintiff has trouble with vision and usually wears glasses, which sometimes give him headaches. His left eye "is pretty well gone."
Plaintiff received treatment for depression and took prescription medication for it in the past. Currently he cannot afford the medication. Tr. 42-43. Until about a year ago, plaintiff used alcohol, marijuana and methamphetamine. He has been sober for a year and goes to AA meetings online.
Plaintiff has a ninth grade education and some on-the-job training in welding. Tr. 43-45. His last job was working with plastics in 2006; he started having trouble with his ulcers and his employer laid him off.
The ALJ asked the vocational expert whether an individual limited to light work, frequent bilateral reaching, no depth perception and no exposure to vibrations could perform work. Tr. 50-51. The vocational expert testified that someone with those restrictions could work as a marker/delivery clerk, routing clerk and night cleaner. Tr. 51. The vocational expert testified that an individual limited to no more than occasional rotation and flexion of the neck would not be able to maintain competitive work because he or she would be off-task over 15 per cent of the time. The vocational expert testified that an individual who needed to take breaks beyond the normally scheduled breaks would not be able to maintain competitive work. Tr. 50.
In his order of January 25, 2012, the ALJ made the following findings:
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform less than a full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift, carry, push, and pull twenty pounds occasionally and ten pounds frequently.
Tr. 11-22 (some internal citations omitted).
The Court reviews the Commissioner's decision to determine whether it is "free from legal error and supported by substantial evidence."
Plaintiff bears the burden of proving disability under the Social Security Act.
The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 404.1520;
At step four, the ALJ makes specific findings of fact at three phases: (1) the individual's RFC, (2) the physical and mental demands of prior jobs or occupations and (3) the ability of the individual to return to the past occupation given his or her RFC.
Plaintiff claims that the ALJ erred in (1) weighing the medical opinions and evaluating his credibility to formulate his RFC and (2) in finding that he could perform work that exists in the national economy.
Plaintiff claims that the ALJ did not properly weigh the treating physician's opinion and placed too much weight on the opinion of non-examining medical sources. He asserts that as a result, the ALJ ignored his limited range of motion in his neck and erroneously formulated an RFC which allowed for occasional cervical rotation and flexion.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s) including [claimant's] symptoms, diagnosis and prognosis." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). If the Commissioner finds that a treating source opinion on the nature and severity of the claimant's impairments is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record, the Commissioner will give it controlling weight.
Where, as here, the ALJ decides not to give controlling weight to a treating physician's opinion, the ALJ must decide what weight to assign it.
After considering the factors, the ALJ must give reasons for the weight which he gives the treating source opinion.
The parties agree that Dr. Sloyer was a treating physician. Plaintiff asserts that the ALJ improperly gave little weight to Dr. Sloyer's opinion that plaintiff continued to have problems with his neck pain "to the point where he is really unemployable." Tr. 579 (examination in December of 2011). Dr. Sloyer noted that while cervical fusion helped, plaintiff continued to have nerve pain into his right hand. Tr. 579. Dr. Sloyer opined that plaintiff met Listing 1.04 for cervical spine disorder and could never look down (
The ALJ gave little weight to Dr. Sloyer's opinion, finding that it was unsupported by medical records, inconsistent with Dr. Sloyer's own objective findings and with evidence from other treating sources.
Plaintiff contends that the ALJ overlooked other medical records that are consistent with Dr. Sloyer's opinion. Specifically, plaintiff points to evidence that he had a weak grip and decreased range of motion. The ALJ acknowledged that this evidence supported limitations in the RFC, but found that it did not support Dr. Sloyer's opinion that plaintiff could never use his right extremity and could never move his neck. Tr. 538-40. Moreover, the ALJ correctly noted that both consultive exams revealed cervical and lumbar range of motion in the normal range. Here, the ALJ gave specific reasons for discrediting Dr. Sloyer's opinion, and the records supports these reasons.
Plaintiff next contends that the ALJ erred in affording great weight to the opinion of Dr. Eades, a non-treating and non-examining medical source who reviewed plaintiff's medical records.
The opinion of a non-treating source who only examined claimant once is not entitled to the sort of deferential treatment accorded to a treating physician's opinion.
On May 3, 2011, Dr. Eades opined that plaintiff should be capable of a range of light work with no overhead reaching or depth perception within 12 months of surgery. Tr. 508-15. The ALJ stated that he gave great weight to that opinion because it "reflects the progressive recovery of the claimant, status post surgery, which is consistent with the objective record." Tr. at 20, citing Ex. 37F;
Plaintiff asserts that the ALJ failed to properly evaluate the credibility of his assertions of limitations caused by subjective complaints and did not give sufficient reasons for finding him not entirely credible.
An ALJ's credibility determinations are generally treated as binding on review.
The Tenth Circuit has explained the analysis for considering subjective testimony regarding symptoms, as follows:
For evaluating symptoms at step three of the framework, courts have set out a non-exhaustive list of factors which include the following:
The Commissioner has promulgated regulations suggesting additional, somewhat overlapping factors: daily activities; location, duration, frequency and intensity of symptoms; factors precipitating and aggravating symptoms; type, dosage, effectiveness and side effects of medications taken to relieve symptoms; treatment for symptoms; measures which plaintiff has taken to relieve symptoms; and other factors concerning limitations or restrictions resulting from symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i-vii), 416.929(c)(3)(i-vii).
Here, the ALJ set out the
Plaintiff also alleged disability due to vision problems, but the ALJ noted his testimony that he watched television, read the newspaper and filled out his disability application. Throughout the analysis, the ALJ set out plaintiff's claims of specific limitations due to pain and vision problems, and pointed to evidence that suggested that plaintiff's limitations were less severe than he claimed. For example, plaintiff testified that he had to lie down for a good part of the day, but he did not show this limitation at either consultive exam. The Court finds no basis to discount the ALJ's credibility determination.
The ALJ determined that plaintiff retained the following RFC:
Tr. 17.
Plaintiff asserts that the ALJ erred by not limiting his RFC to occasional cervical rotation and flexion.
The ALJ reasonably found that Dr. Sloyer's opinion as to plaintiff's extreme limitations in cervical range of motion was entitled to little weight; therefore the ALJ was warranted in not including a limitation to occasional cervical rotation and flexion in plaintiff's RFC.
After formulating plaintiff's RFC and concluding that plaintiff had no past relevant work, the ALJ recognized that the burden shifted to the government to show that plaintiff could perform other work that existed in significant numbers in the national economy. Tr. 21-22.
Here, based on plaintiff's limitations that are supported by the record, the ALJ posed a hypothetical question to the vocational expert. The vocational expert testified that the hypothetical person could perform work in the unskilled light labor market Tr. 21, 51. She provided representative examples of occupations including marker/delivery clerk, routing clerk and night cleaner. Tr. 21, 51.
As set out above, plaintiff argues that the ALJ erred in not limiting him to only occasional cervical rotation and flexion. The vocational expert testified that an individual with that limitation would not be able to maintain competitive work because it would result in off-task behavior more than 15 per cent of the work day. Tr. 52-53. If the hypothetical limitations are not supported by the evidence, however, the ALJ may disregard the vocational expert's testimony in response to a hypothetical question.
