ABBIE CRITES-LEONI, Magistrate Judge.
Plaintiff Todd Taylor brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Social Security Administration ("SSA") Commissioner's decision, following continuing disability review ("CDR"), finding that he was no longer entitled to previously-granted disability insurance benefits under Title II of the Social Security Act. This matter is pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is presented in the parties' briefs and is repeated here only to the extent necessary.
On December 23, 2009, Taylor was found disabled beginning January 31, 2007, under the application for Title II disability insurance benefits that he protectively filed on October 14, 2008. (Tr. 68-71.) The administrative law judge ("ALJ") found that Taylor's degenerative disc disease of the lumbar spine met the criteria of listing 1.04A and that Taylor was therefore disabled. (Tr. 70.) The ALJ noted that medical improvement was "expected with appropriate treatment." (Tr. 71.) Consequently, the ALJ recommended a continuing disability review in twelve months. Id.
On October 15, 2011, the SSA reviewed Taylor's claim for continuing disability, and concluded that Taylor was no longer disabled as of that date because work-related medical improvement had occurred. (Tr. 72, 74.) Taylor's period of disability terminated on December 31, 2011. (Tr. 74.) Taylor appealed the termination of benefits, and the termination was affirmed upon reconsideration. (Tr. 88-96.) On November 19, 2012, following a hearing, an ALJ found that Taylor was no longer disabled as of December 31, 2011. (Tr. 23-31.) On May 12, 2014, the Appeals Council denied Taylor's request for review of the ALJ's decision. (Tr. 1-3.) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981.
In the instant action, Taylor first claims that the ALJ erred when he failed to "properly apply the `medical improvement' standard prior to concluding that `there has been improvement' in the claimant's medical condition and that the tests did not show a worsening." (Doc. 13 at 5.) Taylor next argues that the ALJ erred by failing to "comply with 20 C.F.R. § 404.1527 by failing to accord adequate weight to the opinion of the claimant's treating physician." Id.
Once an individual becomes entitled to disability and SSI benefits, his continued entitlement to benefits must be reviewed periodically. 42 U.S.C. § 423(f)(1); 20 C.F.R. § 416.949(a). If there has been medical improvement related to the claimant's ability to work, and the claimant is able to engage in substantial gainful activity, then a finding of not disabled will be appropriate. Id.; Nelson v. Sullivan, 946 F.2d 1314, 1315 (8th Cir. 1991). The "medical improvement" standard requires the Commissioner to compare a claimant's current condition with the condition existing at the time the claimant was found disabled and awarded benefits. Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008), cert. denied, 129 S.Ct. 1999 (2009)).
The Eighth Circuit has articulated the burden in this type of case as follows:
Nelson, 946 F.2d at 1315-16.
The CDR process involves a sequential analysis prescribed in 20 C.F.R. § 404.1594(f), pursuant to which the Commissioner must determine the following:
Delph, 538 F.3d at 945-46.
The regulations define medical improvement as:
20 C.F.R. § 416.994(b)(1)(I). Medical improvement can be found in cases involving the improvement of a single impairment if that improvement increases the claimant's overall ability to perform work related functions. Id. § 416.994(c)(2).
Medical improvement is related to the claimant's ability to work if an impairment improved to the extent that it no longer meets a listing. See 20 C.F.R. § 404.1594(c)(3)(i) ("If medical improvement has occurred and the severity of the prior impairment(s) no longer meets or equals the same listing section used to make our most recent favorable decision, we will find that the medical improvement was related to your ability to work").
Judicial review of the Commissioner's decision is limited to determining whether the Commissioner's findings are supported by substantial evidence. See Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). "Substantial evidence `is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion.'" Cruse v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996) (quoting Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). The Court does not re-weigh the evidence or review the record de novo. Id. at 1328 (citing Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992)). Instead, even if it is possible to draw two different conclusions from the evidence, the Court must affirm the Commissioner's decision if it is supported by substantial evidence. Id. at 1320; Clark v. Chater, 75 F.3d 414, 416-17 (8th Cir. 1996).
The ALJ made the following findings:
(Tr. 25-31).
The ALJ's final decision reads as follows:
(Tr. 31.)
As noted above, Taylor raises two claims in this action for judicial review of the ALJ's decision terminating benefits. The undersigned will discuss Taylor's claims in turn.
Taylor first argues that the ALJ committed reversible error in failing to properly apply the "medical improvement" standard prior to summarily concluding that "there has been improvement" in Taylor's medical condition. Defendant contends that the ALJ properly concluded that Taylor's degenerative disc disease had medically improved related to the ability to work.
Taylor was found disabled in the comparison point decision issued on December 23, 2009, because his degenerative disc disease met listing 1.04A. (Tr. 70-71.) Listing 1.04 provides:
20 C.F.R. Pt. 404, Subpt. P, Appx. 1, § 1.04. The ALJ in the comparison point decision found that Taylor's lumbar spine impairments, including spinal stenosis,
The ALJ in the instant case found that Taylor's degenerative disc disease of the lumbar spine no longer met Listing 1.04 as of December 31, 2011, because there was no evidence of nerve root compression, spinal arachnoiditis, or pseudo-claudication of the lumbar spine that results in an inability to ambulate effectively. (Tr. 26.) The medical evidence supports this finding.
The ALJ noted that Taylor underwent a laminectomy
The ALJ next stated that the objective medical records after Taylor's surgery do not support the presence of significant spinal impairments. Id. Taylor's February 2010 CT myelogram revealed grade 2 anterolisthesis
The ALJ noted that Taylor also saw family physician Aubra Houchin, D.O., for treatment of his back pain following his surgery. (Tr. 27.) On February 16, 2010, Taylor reported experiencing pain in his back and down his leg after slipping and falling on ice two weeks prior. (Tr. 278.) Upon examination, Dr. Houchin noted that Taylor was not acutely ill and moved "pretty good." Id. Taylor had no gross motor deficit, and a slightly labored gait. Id. Dr. Houchin prescribed Vicodin
The ALJ next discussed the records of Sandra Tate, M.D. (Tr. 27.) Taylor saw Dr. Tate, an orthopedist, on September 8, 2010, for an independent medical examination. (Tr. 305-07.) Taylor reported that his lower back symptoms were improved for a while following surgery, but he is currently having pain higher up, above the operative site. (Tr. 305.) Taylor also reported difficulties with bowel incontinence since his surgery, although Dr. Tate noted that the record showed that he first reported this to his physician in March of 2010, after he had fallen. Id. Dr. Tate noted that Taylor's February 2010 myelogram was unremarkable. Id. Upon examination, http://www.webmd.com/drugs (last visited September 18, 2015). Dr. Tate noted paravertebral tenderness but no muscle spasm; a slight decrease in range of motion of the lumbosacral spine; 4/5 strength in the upper and lower extremities; and negative straight-leg raising. (Tr. 306.) Dr. Tate stated that Taylor's symptoms of incontinence and increasing back pain seemed to occur after he fell following his lumbar fusion. Id.
The ALJ also discussed the questionnaire completed by Dr. Buchowski on July 7, 2011. (Tr. 27.) Dr. Buchowski completed a form, in which he indicated that Taylor has the diagnosis of isthmic
Finally, the ALJ discussed notes from physical therapist Caitlin Weindel. (Tr. 28.) Ms. Weindel saw Taylor for an assessment on January 26, 2012, at which time he reported mid-back pain that had been worsening since his surgery. (Tr. 413.) He denied any numbness or tingling in the lower extremities since surgery. Id. Ms. Weindel noted tenderness to palpation in the thoracic spine. Id. She stated that Taylor tolerated treatment well, and his pain was slightly decreased after his session. Id. On February 21, 2012, Ms. Weindel indicated that Taylor had attended physical therapy for one month, and his mid and upper back pain was significantly improved. (Tr. 412.) Ms. Weindel stated that Taylor's cervical spine range of motion was within normal limits, and tenderness to palpation was noted in the lower lumbar spine to the left of L5. Id. Ms. Weindel indicated that Taylor has been able to perform his daily activities without problems. Id.
The medical evidence discussed above supports the ALJ's determination that Taylor's degenerative disc disease no longer met listing 1.04A as of December 31, 2011, and that medical improvement occurred, because there was no evidence of nerve root compression. Taylor reported improvement in his lower back pain to Dr. Buchowski beginning on his first post-operative visit in November 2009. (Tr. 409.) Taylor reported to Dr. Houchin in December 2011 that his low back pain was better following his fusion (Tr. 33) and made the same report to Dr. Tate in September 2010 (Tr. 305). Physical examinations following Taylor's surgery performed by Drs. Buchowski and Houchin revealed a well-healed incision, normal motor strength throughout the lower extremities, normal sensation, and normal reflexes. (Tr. 409, 247, 278, 276, 269, 334). Dr. Tate noted only paravertebral tenderness and a slight decrease in range of motion of the lumbosacral spine, with 4/5 strength in the upper and lower extremities, at her September 2010 examination. (Tr. 306.) Taylor's February 2010 CT myelogram revealed no significant neural foraminal or spinal canal narrowing. (Tr. 253.) It is true, as Taylor notes, that a nerve conduction study he underwent on March 3, 2010 revealed evidence of chronic neurogenic changes in L4/S1 distribution on the right. (Tr. 296.) It was noted that this could represent chronic right L4/S1 lumbar radiculopathy. (Tr. 296.) (emphasis added). No definite evidence of radiculopathy, however, was ever found. Instead, on January 3, 2012, Taylor reported to Dr. Buchowski that his lower extremity radicular symptoms and low back pain had resolved. (Tr. 407.)
The medical evidence does reveal complaints of thoracic back pain, beginning around February 2010. (Tr. 247.) At that time, Dr. Buchowski noted no significant tenderness to palpation over his thoracic spine. (Tr. 407.) Similarly, Dr. Houchin noted that Taylor moved "pretty good," and had no gross motor deficit despite his complaints of thoracic back pain in February 2010. (Tr. 278.) Dr. Houchin indicated that Taylor's musculoskeletal examination was normal in February 2011 (Tr. 269), and again in December 2011 (Tr. 334). Taylor underwent x-rays of the thoracic spine on January 3, 2012, which revealed only "minimal thoracic spine levocurvature." (Tr. 419.) Taylor attended physical therapy for his thoracic back pain. The treatment notes of physical therapist Ms. Weindel revealed that Taylor's thoracic pain was "significantly improved" with physical therapy, and that Taylor was able to perform his daily activities without problems. (Tr. 412.) Thus, Taylor's complaints of thoracic back pain do not detract from the ALJ's finding that Taylor experienced medical improvement in his degenerative disc disease such that he no longer met Listing 1.04A.
Taylor argues that he did not experience medical improvement because his case is similar to Example 1 of 20 C.F.R. § 1594(b)(1). Example 1 provides as follows:
Here, unlike the hypothetical claimant in Example 1, Taylor's myelogram did not show evidence of a persistent deficit in the lumbar spine following surgery. Rather, Taylor's February 2010 myelogram revealed no evidence of neural compression or neural, foraminal, or spinal narrowing. (Tr. 253.) In addition, Taylor's treating surgeon did not report that he had a moderately decreased range of motion in his back or right leg but, instead, reported that he had normal strength and reflexes and negative straight-leg raising. (Tr. 409, 247). Dr. Burchowski indicated that Taylor's myelogram showed no evidence of neural compression, and all of his implants looked good. (Tr. 249.) He stated that it was "difficult to explain [Taylor's] symptoms." Id. Thus, Taylor's case is not similar to Example 1.
The ALJ properly found that Taylor experienced medical improvement such that his spinal impairment no longer met Listing 1.04A. Further, because Taylor's impairment improved to the extent that it no longer met a listing, the medical improvement is related to his ability to work. See 20 C.F.R. § 404.1594(c)(3)(i).
Taylor next argues that the ALJ erred by failing to accord adequate weight to the opinion of his treating surgeon, Dr. Buchowski, in determining his residual functional capacity ("RFC"). Taylor also contends that the ALJ did not comply with 20 C.F.R. § 404.1527 in evaluating Dr. Buchowski's opinion.
The ALJ made the following determination regarding Taylor's RFC:
(Tr. 28.)
Social Security regulations require the ALJ to consider medical source opinions when assessing a disability claimant's RFC. See 20 C.F.R § 404.1527(b). Medical source opinions are statements from physicians, psychologists, or other acceptable medical sources that reflect judgments about the nature and severity of the claimant's impairments. See 20 C.F.R. § 404.1527(a)(2). If a treating source medical opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record, it will be afforded "controlling weight." 20 C.F.R. § 404.1527(c)(2). However, such an opinion is not automatically controlling. Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010) (treating source opinion "does not automatically control in the face of other credible evidence on the record that detracts from that opinion" (internal quotation marks omitted)). An ALJ may discount the opinion of a treating physician if it is inconsistent with the physician's clinical treatment notes. Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010) (citing Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009)). It is also permissible for an ALJ to discount a treating physician's opinion that is inconsistent with the record as a whole. See id. at 931 (citing Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) ("If the doctor's opinion is inconsistent with or contrary to the medical evidence as a whole, the ALJ can accord it less weight.")). "When an ALJ discounts a treating physician's opinion, he should give good reasons for doing so." Martise v. Astrue, 641 F.3d 909, 925 (8th Cir. 2011) (citation omitted).
The ALJ discussed the questionnaire Dr. Buchowski completed on July 7, 2011, in which he expressed the opinion that Taylor was unable to stand, walk, or sit for extended periods of time. (Tr. 27, 301.) The ALJ assigned "little weight" to this opinion, because the opinion was not supported by the medical record. (Tr. 27.) As previously discussed, Dr. Buchowski's own treatment notes reveal that Taylor had normal motor strength throughout the lower extremities, normal sensation, normal reflexes, and negative straight-leg raising test. In fact, in January 2012, after Dr. Buchowski authored his opinion, Dr. Buchowski stated that Taylor's lower extremity radicular symptoms and low back pain had "resolved." (Tr. 407.)
The ALJ also discussed the opinion of consulting orthopedist Dr. Tate. (Tr. 27.) Dr. Tate expressed the opinion that Taylor was limited from standing or walking for more than one hour at a time, for a total of three hours per day; lifting more than twenty pounds; repetitive bending at the waist; and he should avoid heights, stairs, and ladders. (Tr. 306-07.) The ALJ assigned "great weight" to Dr. Tate's opinion, because he found it was consistent with the medical evidence of record. (Tr. 27-28.) Dr. Tate's opinion is consistent with her examination of Taylor, in which she noted Tylor had 4/5 strength in the upper and lower extremities, a slight decrease in his lumbosacral range of motion, and negative straight-leg raising. (Tr. 306.) Dr. Tate's opinion is also consistent with the treatment notes of Dr. Buchowski, in which he noted minimal findings on examination. The ALJ indicated that Dr. Tate's opinion was the basis of the RFC he formulated. (Tr. 28.)
The undersigned finds that the ALJ properly resolved conflict among Taylor's treating and examining physicians under 20 C.F.R. § 404.1527 in determining Taylor's RFC. Because Dr. Buchowski's opinion is controverted by other substantial evidence, including his own treatment notes, the ALJ properly discounted his opinion. See 20 C.F.R. § 404.1527(c)(4) ("Generally, the more consistent an opinion is with the evidence of record as a whole, the more weight we will give to that opinion"); Halverson, 600 F.3d at 930. Significantly, Dr. Buchowski found that Taylor's lower extremity radicular symptoms and low back pain had "resolved" by January 2012. (Tr. 407.) Thus, the ALJ articulated good reasons for not assigning controlling weight to Dr. Buchowski's July 2011 opinion in assessing Taylor's RFC. The RFC formulated by the ALJ is supported by substantial evidence in the record as a whole.
After determining Taylor's RFC, the ALJ found that Taylor could not perform his past relevant work as a carpenter. (Tr. 30.) The ALJ found, based on the testimony of a vocational expert, that Taylor could perform other work as a telemarketer, cashier, and small products assembler. (Tr. 30-31.) Thus, the ALJ's decision finding Taylor no longer disabled is supported by substantial evidence. See Buckner v. Astrue, 646 F.3d 549, 560-61 (8th Cir. 2011) ("A vocational expert's testimony constitutes substantial evidence when it is based on a hypothetical that accounts for all of the claimant's proven impairments").
Accordingly, Judgment will be entered separately in favor of Defendant in accordance with this Memorandum.
