EDWARD B. ATKINS, Magistrate Judge.
On September 29, 2010, the Plaintiff, Steven R. Patrick, filed a Title II application for a period of disability and disability insurance benefits. He also filed a Title XVI application for supplemental security income on February 1, 2011. In both applications, he alleged the onset of disability on January 10, 2009. [TR. 17]. The claims were denied initially on February 22, 2011, and upon reconsideration on May 4, 2011. [TR. 17]. He sought and was granted a hearing, where he appeared and testified before an Administrative Law Judge [ALJ] on April 30, 2012. [TR. 17]. On May 30, 2012, the ALJ denied his applications for benefits, finding that Patrick was not disabled under the Social Security Act. [TR. 28]. The Appeals Counsel denied his request for review on August 12, 2013, and on September 14, 2013, Patrick filed the complaint in this action. [R. 1]. He and the Defendant now seek summary judgment, and the matter is ripe for review. For the reasons stated more fully below Patrick's Motion for Summary Judgment R. 12] will be DENIED, and the Defendant's Motion for Summary Judgment [R. 13] will be GRANTED.
At the time of the alleged onset of disability, Patrick was a high school educated 50 year old male, with some vocational training in welding and a past employment history of working as a canteen clerk, material handler and shipper. He ceased employment in January 2009, due to poor circulation in his arms and legs, diabetes, asthma, high cholesterol, high blood pressure, arthritis, and acid reflux. [TR. 181]. At step one of the sequential evaluation process, the ALJ determined that Patrick had not engaged in substantial gainful activity since the alleged onset of his disability. At step two, the ALJ found Patrick to have the following severe impairments: lumbar strain; osteoarthritis; reduced visual acuity; asthma; diabetes mellitus; and obesity. Although the ALJ determined that Patrick suffered from hypertension, hyperlipidemia, gastroesophageal reflux disease (GERD), and a hiatal hernia, he found that these were non-severe impairments. At step three, the ALJ determined that Patrick does not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Considering the evidence before him, the ALJ found that Patrick had the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that he is limited to occasional climbing, stooping, kneeling, crouching, and crawling. In addition, he must avoid concentrated exposure to excessive vibration and irritants such as fumes, odors, dust, gasses, and poorly ventilated areas. Finally, the ALJ opined that Patrick is limited to occupations that do not require 20/20 vision. In light of this residual functional capacity, at step four of the sequential evaluation process, the ALJ found that Patrick was unable to perform any of his past relevant work as a canteen clerk, material handler and shipper, which was listed in the Dictionary of Occupational titles as medium and heavy work, respectively. Finally, at the fifth and final step of the sequential evaluation process, the ALJ asked vocational expert, Leah P. Salyers, whether jobs exist in the national economy for an individual with Patrick's age, education, work experience, and residual functional capacity. The expert testified that given these factors, the individual would be able to perform the requirements of occupations such as Product Packager and Counter Cashier, Machine Monitor, and Product Grader and Sorter, in the light and sedentary exertional levels, respectively. [TR. 42]. Finally, the expert testified that these occupations exist in significant numbers in the national economy. Therefore, the ALJ found Patrick "not disabled" and denied his claims for benefits.
He filed a complaint in the instant action seeking review of the decision on September 14, 2013. [R. 1].
Pursuant to 42 U.S.C. § 405(g), a reviewing court "must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record."
In this action, the Plaintiff seeks an order either reversing the Commissioner's decision and remanding the action for an award of benefits, or remanding the matter back to the ALJ for further consideration.[R. 1]. In support of these demands for relief, he alleges that the ALJ committed the following errors: (1) failed to consider Mr. Patrick's diagnosis of GERD as a severe impairment; (2) erred in finding that Patrick's back pain, knee pain and shoulder pain were non-medically determinable impairments; (3) inaccurately assessed a residual functional capacity "which resulted in the ALJ failing to following [sic] Step Two of the five step sequential evaluation process"; (4) erred in relying on the medical opinion of an anesthesiologist, who did not examine Patrick, nor did he have the opportunity to review the complete file; and
(5) failed to give adequate reasons for assigning little weight to the treating physician and greater weight to a non-examining consulting physician. However, for the reasons that follow, Patrick does not justify the relief he requests, and his motion for summary judgment will be denied.
Patrick relies on the statement by Dr. Short, a claimed treating physician, that his GERD causes frequent coughing due to the reflux of acid up into the bronchi and lungs and, as a result, he is unable to lie flat. Therefore, Patrick contends, his GERD should have been found to be a severe impairment. However, an ALJ does not commit reversible error simply by finding an impairment to be non-severe where other impairments are found to be severe. This is because an ALJ may still consider non-severe impairments when determining a claimant's residual functional capacity and therefore his ability to engage in substantial gainful activity. As stated in
Therefore, the ALJ's decision to consider Patrick's diagnosis of GERD as a non-severe does not constitute error that requires reversal of the decision denying benefits.
Here, Patrick claims that the medical evidence clearly supports his testimony regarding impairments due to these areas of pain, and how they limit his ability to sit, stand and walk. He relies on a letter from Dr. Short dated April 3, 2012, in which the physician states that Patrick suffers from chronic low back pain, chronic bilateral knee pain and bilateral shoulder pain. [TR. 408]. Patrick also relies on the opinion of Dr. Guberman where he noted on exam that Patrick ambulates with antalgic gait, demonstrates moderate tenderness in his thoracic and lumbar spine, scoliosis, 0 degrees straight leg raising bilaterally, moderate tenderness and moderate crepitation in both knees with an inability to extend the right knee beyond 20 degrees of flexion. Patrick points out that Guberman stated that the examination reveals range of motion abnormalities of the cervical spine, thoracic spine, lumbar spine, both shoulders, right elbow, both hands, knees, left ankle, left hindfoot and both hips. [Tr. 416]. Finally, Patrick relies on the state agency examiner, Dr. Kip Beard, who found mild pain with tenderness of the knees, right worse than left, patellofemoral crepitus, and chronic pain. As a result, Patrick contends that the ALJ incorrectly stated that Patrick's chronic low back pain, chronic bilateral knee pain and bilateral shoulder pain were non-medically determinable impairments, as he did not consider these "disabilities" as severe impairments. However, pain is not a medically determinable impairment, but a symptom of an impairment.
In considering the issue of whether medically determinable impairments were serious enough to cause the extent of pain related by Patrick, the ALJ afforded little weight to Dr. Guberman's opinions ("Additionally, the doctor's overly restrictive opinion, especially regarding the postural limitations, is based on a single interaction with the claimant and is inconsistent with the objective medical evidence of record as described above") and Dr. Short ("The undersigned affords little weight to the questionnaire completed by Dr. Short, since it endorses limitations that are grossly out of proportion to the objective evidence of record."). [TR. 22].
[TR. 22-23].
As a result, the record reflects that the ALJ correctly incorporated any restrictions secondary to medically determinable impairments into the hypothetical which led to the conclusion that Patrick is capable of performing jobs that exist in significant numbers in the national economy. In doing so, he articulated adequate reasons for giving more weight to some and less weight to other medical opinions. Patrick's claims to the contrary are without merit, and provide him no relief in this action.
Patrick contends that the ALJ gave great weight to a non-treating, non-examining physician, Dr. Timothy Gregg, whose specialty is anesthesiology. Dr. Gregg, he argues, did not have the opportunity to examine Patrick or even his complete medical file. He contends that the ALJ erred in giving greater weight to Dr. Gregg's opinions, and failing to give controlling weight to Patrick's treating physician, Dr. Short. In considering the weight to give an opinion, the ALJ considers several factors, "Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion." 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). These factors include: (1) the Examining relationship, (2) Treatment relationship, (i) Length of the treatment relationship and the frequency of examination, (ii) nature and extent of the treatment relationship, (3) Supportability, (4) consistency, and (5) specialization.
20 C.F.R. 404.1527(5) requires, generally, that more weight be given to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist. Patrick argues that Dr. Gregg did not consider a questionnaire completed by Dr. Short, in which the physician stated that she agreed with Dr. Guberman's assessment that Patrick would be able to sit no longer than about 20 minutes and stand and walk for no longer than 20 minutes. [R. 12, TR 408]. In summary, Dr. Short believed that Patrick would not be able to maintain work 8 hours a day and 5 days a week. [Tr. 422]. Patrick believes that if Gregg had the opportunity to review this supplemental information, he may have agreed, and cites the case of
Finally, Patrick contends that the ALJ did not give adequate reasons for discounting the RFC and opinions of Dr. Short, and argues that the ALJ discounted the treating physicians' RFC by relying on forms completed by Patrick more than one year before Dr. Short and Dr. Guberman issued their opinions. In addition, he contends that the ALJ misconstrued Patrick's statements, and does not provide sufficient evidence on which to discount the RFC incorporating Dr. Guberman's recommended physical restrictions.
However, as Dr. Short only saw Patrick on one occasion, he is not a "treating source".
The ALJ's opinions were properly supported by substantial evidence of record. He gave good reasons for according little weight to some opinions and greater weight to others. Therefore, his opinion should be upheld.
Therefore, for the foregoing reasons, it is ORDERED that the Plaintiff's Motion for Summary Judgment [Record No. 12] be DENIED, the Defendant Commissioner's Motion for Summary Judgment [Record No. 13] be GRANTED, and that Judgment be entered affirming the final decision of the Commissioner.
