LAWRENCE E. KAHN, District Judge.
This case has proceeded in accordance with General Order 18, which sets forth the procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed briefs. Dkt. Nos. 8 ("Plaintiff's Brief"); 9 ("Defendant's Brief"). For the following reasons, the judgment of the Social Security Administration ("SSA") is affirmed.
Plaintiff Walker J. Kempston ("Plaintiff") has a history of health issues including degenerative disk disease of the lower spine, hypertension, chronic obstructive pulmonary disease ("COPD"), non-specific sleep fragmentation, and poor sleep efficiency.
Plaintiff was first treated by Dr. David Barber ("Dr. Barber") at the Phoenix Primary Care Center on November 19, 2001 for pain in his lower back caused by lifting chairs. R. at 301. Plaintiff claimed to have a recent flare up of lower back pain and had a twenty-year history of back pain.
Plaintiff was treated at A.L. Lee Memorial Hospital by Dr. Anurag Sahai, where he was diagnosed with "poor sleep efficiency and non-specific sleep fragmentation" on October 7, 2007. R. at 227. On December 11, 2007, Plaintiff was treated by Dr. Barber for hypertension and continued fatigue. R. at 277. Dr. Barber prescribed amitriptyline for pain that may have caused sleep disturbances and increased Plaintiff's blood pressure medication due to his elevated blood pressure.
Plaintiff was again treated by Dr. Barber on September 15, 2008 for lower back pain. R. at 272. At the time of the appointment, Dr. Barber noted that Petitioner could bend to 30 degrees before his back began to tighten and perform straight leg raises to 70 degrees.
On December 13, 2010, Dr. Barber evaluated Plaintiff during a preoperative medical examination for cataract surgery. R. at 266. Plaintiff told Dr. Barber that he became short of breath when walking quickly for long distances but was able to walk through the mall, carry groceries, and climb stairs without any difficulties.
On April 15, 2011, Plaintiff presented to Dr. Edward Southard ("Dr. Southard") for a consultative internal medicine examination per the referral of the Division of Disability Determination. R. at 309. Plaintiff reported a history of lower back pain and a diagnosis of a herniated disk in 2003.
Dr. Southard noted that Plaintiff was able to cook, clean, and do laundry by himself. Plaintiff could also shower, bathe, and dress without difficulty. R. at 310. Upon examination, Dr. Southard determined Plaintiff had a normal gait, walked on heels and toes without difficulty, and could squat fully.
Plaintiff had a follow-up appointment with Dr. Barber on August 3, 2011 for hypertension, lower back pain, COPD, and gastroesophageal reflux disease ("GERD"). R. at 355. Dr. Barber noted that Plaintiff could not sit for long periods due to back pain and numbness in his right leg.
On November 11, 2011, Plaintiff was treated by Dr. Barber for lower back pain. R. at 351. Dr. Barber noted that an MRI performed on August 29, 2011 showed disc bulging with mild central canal stenosis and bilateral foraminal narrowing at L3-4 and L4-5, mild bilateral foraminal stenosis at L5-S1, and spondylolisthesis of L5 on S1 secondary to facet degenerative changes.
On the same day, Dr. Barber also completed a medical source statement outlining Plaintiff's limitations from lower back pain with right sciatica and COPD. R. at 318-20. Dr. Barber indicated that he has treated Plaintiff since April 12, 1998 and opined Plaintiff's prognosis as "poor for [a] meaningful recovery." R. at 318. Dr. Barber determined that Plaintiff's limitations where as follows: he could walk two to three city blocks without rest or severe pain; he could sit twenty minutes at one time and less that two hours in an eight hour workday; he could stand thirty minutes at one time and about four hours in an eight hour workday; he would need a job permitting shifting positions at will from sitting, standing, or walking; he would need greater than or equal to six unscheduled breaks during the workday and would need to rest forty-five minutes before returning to work; he could occasionally lift less than ten pounds, but never ten or more pounds; he could rarely twist, but never stoop/bend, crouch/squat, or climb ladders; he could occasionally climb stairs; he would be off task more than twenty percent of the workday; he should avoid even moderate exposure to extreme cold and humidity; and he should avoid all exposure to fumes, odors, dusts, gases, and poor ventilation. R. at 318-20.
On November 14, 2011, Plaintiff treated with Dr. Donna-Ann Thomas ("Dr. D. Thomas") and Dr. Jonathan Pratt ("Dr. Pratt") at Upstate Comprehensive Pain Medicine, per the referral of Dr. Barber, for back pain. R. at 339-41. Plaintiff reported tripping over his right foot.
On November 23, 2011, Plaintiff received a right L5 transforaminal steroid injection under the supervision of Dr. P. Sebastian Thomas ("Dr. P. Thomas") at Upstate Comprehensive Pain Medicine. R. at 335-38. Plaintiff's pain was reduced from a 7/10 to a 4/10 within thirty minutes of the procedure. R. at 336-37. Dr. P. Thomas noted that Plaintiff's gait was normal and he could undergo exercise testing or participate in an exercise program. R. at 335.
On May 24, 2012, Plaintiff returned to Dr. P. Thomas with complaints of pain in his lower back and right leg. R. at 331-34. Dr. P. Thomas noted that Plaintiff obtained a 70 percent reduction in pain for about four months following the transforaminal steroid injection on November 23, 2011.
Plaintiff received a second transforaminal nerve root injection on June 14, 2012. R. at 328-30. Dr. P. Thomas noted that the second injection did not provide as much relief as previous injections and that Plaintiff denied falling or tripping.
On May 11, 2012, Plaintiff was treated by Dr. Barber for complaints of bilateral knee pain. R. at 349. Plaintiff claimed that his knees hurt when climbing stairs, squating down, or standing from a seated position, but denied any swelling or locking up.
During a follow up visit on July 17, 2012 with Dr. Christi Barber ("Dr. C. Barber") regarding his second transforaminal nerve root injection, Plaintiff stated that his pain had improved by fifty percent from prior to the two injections and the aching, sharp pain in his lower back and burning in his leg were "much better." R. at 325. Plaintiff claimed that sitting still exacerbated his pain and the burning in his right leg.
Plaintiff received a third transforaminal nerve root injection on July 27, 2012 performed under the observation of Dr. D. Thomas and Dr. Anthony Lebario ("Dr. Lebario"). R. at 321-24. Dr. D. Thomas noted that the previous injection provided Plaintiff with fifty to sixty percent relief for greater than one month. R. at 321. Prior to the procedure, Plaintiff rated his pain as a 5/10 and stated that the pain was located on the right side of his lower back and traveled down his leg. R. at 322. Within thirty minutes of the procedure, Plaintiff reported his pain as a 0/10.
On August 21, 2012, Plaintiff was treated by Dr. Barber for dizziness and high blood pressure. R. at 347. Plaintiff reported significant and unchanged lower back pain that traveled down his right leg into his foot, and shortness of breath with exertion. Upon examination, Dr. Barber noted straight leg raises to 90 degrees without pain.
On August 31, 2012, Shirley Seabury ("Seabury"), Plaintiff's former supervisor at A.L. Lee Memorial Hospital, drafted a letter describing the accommodations Plaintiff received until the Hospital closed in 2009. R. at 218. Seabury stated that "he was able to continue to fulfill the requirements of the job by wearing a back brace, frequently ambulating around the facility, and attending physical therapy as needed."
On or about March 21, 2011, Plaintiff filed an application for disability insurance benefits, alleging disability beginning June 5, 2009 due to a back injury and COPD. R. at 18. The Social Security Administration ("SSA") denied the application on May 11, 2011, and Plaintiff subsequently filed a written request for a hearing before an Administrative Law Judge ("ALJ") on June 30, 2011. R. at 18. On September 11, 2012, ALJ Scott M. Staller conducted a hearing regarding Plaintiff's claim with his counsel and impartial vocational expert ("VE") Karen Simone ("Simone"). R. at 30.
ALJ Staller asked Plaintiff questions related to his work capabilities, current medical state, and daily life activities. R. at 35-42. Plaintiff testified that his last employment position had lasted from 1997 until the facility was ultimately closed in 2009. R. at 36-37. When asked about his back problems, Plaintiff stated that he feels continuous pain through his lower back and when he sits, the pain goes down his right leg into his foot. R. at 37. Plaintiff testified that he is unable to sit and must lay down to perform exercises learned in physical therapy in order to relieve the pain. R. at 37-38. Further, Plaintiff claimed that the pain disrupts his sleep and he is able to sleep three to four hours each night. R. at 38. When asked about his daily routine, Plaintiff testified that he mostly stays inside his house to watch television and read the newspaper while standing or lying down, and also rides his bicycle. R. at 39-40. Plaintiff stated that he no longer bowls or golfs and mainly visits family. R. at 40.
After the ALJ questioning, Plaintiff's counsel further inquired into Plaintiff's medical status and functional capacity. R. at 42-55. Counsel asked about the onset of Plaintiff's back pain and his ability to work. R. at 42-43. Plaintiff testified that his back problems began in 2002 and, due to his senior status at work, he was permitted certain allowances at work, such as flexible hours and access to the physical therapy department, which enabled him to work until 2009. R. at 43-44. Plaintiff claimed he could only sit for approximately fifteen minutes, stand for forty-five minutes to an hour, lift five to ten pounds, and walk for fifteen to twenty minutes. R. at 50-52. Plaintiff stated that he has also experienced balance issues and on a daily basis trips over his right foot. R. at 52. When counsel inquired about Plaintiff's ability to bend, Plaintiff testified that bending and reaching place a lot of strain on his lower back and he is cautious of doing these activities. R. at 52-53. Plaintiff also stated that he does not do housework, but does go grocery shopping with his wife occasionally. R. at 53. Counsel also asked about Plaintiff's ability to concentrate.
VE Simone then testified regarding Plaintiff's prior work experience. R. at 56. Plaintiff had done light work as a purchasing director.
ALJ Scott M. Staller issued a decision denying Plaintiff's application for disability insurance. R. at 18-25. The ALJ found that Plaintiff had not engaged in any substantial gainful activity since June 5, 2009. R. at 20. The ALJ then found that Plaintiff did suffer from the following severe impediments: degenerative disk disease of the lumbar spine, hypertension, COPD, and non-specific sleep fragmentation and poor sleep efficiency.
The ALJ found that Plaintiff had the RFC to perform medium, skilled work with the exception that he must avoid concentrated exposure to dust, fumes, gases, odors, poor ventilation, or other pulmonary irritants. R. at 20-21. Additionally, the ALJ found that Plaintiff could perform past relevant work as a purchasing director. R. at 25. This determination was based on the objective, medical records and Plaintiff's ability to perform activities of daily living, such as the ability to walk through the mall, carry groceries, climb stairs, cook, clean, wash laundry, shower, and dress by himself without significant difficulty. R. at 22. Plaintiff also showed improvement in functioning with steroid injection treatment and routinely showed negative straight leg raising with an ability to reach towards the ground while keeping his legs straight. R. at 24. VE Simone testified that an individual of Plaintiff's age, education, and work experience possessing the same RFC could perform Plaintiff's past relevant work as a purchasing director as actually and generally performed. R. at 25. As a result, the ALJ concluded that Plaintiff was not disabled by the standards set forth in the Social Security Act. R. at 25.
When a court reviews the SSA's final decision, it determines whether the ALJ applied the correct legal standards and if the ALJ's decision is supported by substantial evidence in the record. 42 U.S.C. § 405(g);
The regulations established by the SSA define disability as "the inability to do 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." 20 C.F.R. § 404.1505(a). To receive disability insurance benefits and/or Social Security income, a claimant must satisfy the requirements set forth in the SSA's five-step sequential evaluation process.
First, the SSA considers whether the claimant is working and if the work amounts to "substantial gainful activity." 20 C.F.R. § 404.1520(a)(4)(i). If it does, the claimant is not considered disabled under SSA standards.
Plaintiff argues that: (1) the ALJ failed to provide adequate weight to the opinion of the treating physician, Dr. Barber; (2) the ALJ failed to properly evaluate the statement from the Plaintiff's previous employer, Shirley Seabury, and erred in assessing Plaintiff's credibility; and (3) the ALJ's Step 4 determination is unsupported by substantial evidence because the ALJ relied upon testimony given in response to an incomplete hypothetical question. Pl.'s Br. at 3.
Plaintiff argues that the ALJ failed to properly weigh the opinion of his treating physician, Dr. Barber.
The ALJ chose to give little weight to the opinion of the treating physician because Dr. Barber relied heavily on Plaintiff's report of symptoms and limitations rather than his own objective, medical evidence which shows less limiting impairments. R. at 24. This finding was proper. Dr. Barber opined that Plaintiff was likely permanently disabled and limited the Plaintiff to a less than sedentary level of exertion with multiple unscheduled breaks. R. at 317-20. Dr. Barber's opinion was not supported by his own treatment notes, nor did he mention any clinical finding that supported his opinion that Plaintiff was disabled. R. at 317. According to his treatment notes from August 12, 2012, Dr. Barber found some diminished reflexes in Plaintiff's lower extremities and a positive Dix-Hallpike result on the right. R. at 327. However, Dr. Barber determined during multiple examinations that Plaintiff's gait was normal, he was able to walk on his heels and toes, and could squat fully. R. at 272, 301, 351, 355, 374. Plaintiff was routinely able to do negative straight leg raises and reach towards the ground, coming withing one foot of touching the floor, while keeping his legs straight. R. at 347, 351, 355. He also had full motor strength, and a symmetric, nontender back. R. at 272, 347, 355. Despite such minimal objective finding, Dr. Barber concluded that Plaintiff was disabled.
From November 2011 to July 2012, Plaintiff was treated at Upstate Comprehensive Pain Medicine at the referral of Dr. Barber for back pain. During that time, Plaintiff received three transforaminal nerve root injections. Before the first injection, Plaintiff rated his pain as a 7/10; following the injection, as a 4/10. R. at 335-38. The doctor preforming the injection noted that Plaintiff's gait was normal and he was able to undergo exercise testing and/or participate in an exercise program.
Dr. Barber's opinion also was not supported by the objective medical findings of Dr. Southard, an orthopedist. Dr. Southard determined that Plaintiff had full motor strength and range of motion, his cervical and lumbar spines showed full flexion and rotary movement, and his joints were non-tender. R. at 310. Plaintiff displayed a normal gait, could walk on heels and toes without difficulty, squat in full, and required no help getting on and off the exam table. His findings indicated that Plaintiff showed no limitations with regard to physical activity. R. at 312.
Additionally, the ALJ relied upon information regarding Plaintiff's daily activities contained in his treatment records. Plaintiff admitted to performing general household activities and independent daily tasks during the period in question. Although Plaintiff testified that he no longer bowled or played golf, on December 13, 2010, he reported to Dr. Barber that, while he became short of breath when he walked "fast for long distances," he was able to walk through the mall, carry groceries, and climb stairs without any difficulties. R. at 266. On April 15, 2011, Plaintiff reported to Dr. Southard that he was able to cook, clean, and do laundry by himself, as well as shower, bath, and dress without difficulty. R. at 310. In November 2011, Dr. Barber noted that Plaintiff had recently visited Florida where he was able to get some relief from his pain by walking in a pool. R. at 351. This information provided by the Plaintiff tends to contradicts the opinion of Dr. Barber that Plaintiff was disabled as he was able to perform activities of daily living.
The SSA regulations state, "We generally give more weight to the opinion of a specialist about medical issues related to his area of specialty than to the opinion of a source who is not a specialist." 20 C.F.R. § 416.927(c)(5). As a specialist in orthopedics, the opinion of Dr. Southard was reasonably given more weight by the ALJ than that of Dr. Barber, a primary physician.
The Plaintiff next argues that the ALJ's credibility finding was not supported by substantial evidence.
Plaintiff testified that he began experiencing back pain in 2002 but continued to work until June 5, 2009, when his employer's facility was closed and his position terminated. R. at 37. Plaintiff explained that he was able to work during that time period because his job allowed for workplace adjustments including a flexible schedule, daily access to physical therapy, and the option to walk or kneel throughout the day to alleviate his back pain. R. at 43. Plaintiff reported that he could stand for forty-five minutes to an hour before needing to lie down. R. at 50-51. He could walk for fifteen to twenty minutes and sit for fifteen minutes before needing to stop.
The ALJ reviewed all relevant records and determined that Plaintiff's statements concerning the intensity, persistence, and limiting effects of the symptoms were not credible. In making this determination, the ALJ first considered Plaintiff's medical history. In addition to the chronic lower back pain as previously discussed, the record documents a history of hypertension, COPD, and sleep difficulties prior to the alleged onset date. In 2007, Plaintiff was diagnosed with poor sleep efficiency and non-specific sleep fragmentation during a sleep study. R. at 227. Additionally, Plaintiff had been treated for hypertension and mild COPD. In April 2011, Dr. Southard determined that Plaintiff should avoid exposure to respiratory irritants secondary to his COPD. R. at 312.
Second, the ALJ reasonably considered Plaintiff's ability to perform activities of daily living, as discussed in the previous section. Third, the ALJ also considered the statement provided by Plaintiff's previous employer, Shirley Seabury, which described the work accommodations provided to Plaintiff. R. at 218. Although the letter did provide insight into Plaintiff's functioning, the ALJ reasonably found that Ms. Seabury's assessment of the Plaintiff's limitations to be inconsistent with the objective medical evidence.
Given the objective medical evidence, the ALJ properly evaluated the statement from Plaintiff's previous employer and reasonably determined that Plaintiff's statements concerning the intensity, persistence, and limiting effects of the symptoms were not credible. Plaintiff's statements regarding the intensity, persistence, and limiting effects of the symptoms were inconsistent with the objective evidence contained in the record. Additionally, Plaintiff's testimony was inconsistent with his reports to doctors as he stated he was able to perform activities of daily living, such as walking through the mall and carrying in groceries.
Lastly, the Plaintiff argues that the ALJ's determination regarding the Plaintiff's ability to preform past relevant work was unsupported because the ALJ relied on the testimony of VE Simone in response to an incomplete hypothetical question.
The ALJ reasonably determined upon examination of the record that Plaintiff had the RFC to preform medium work due to his environmental limitations and shortness of breath secondary to his COPD. R. at 20-21, 321. Because the Plaintiff was found to have an RFC to preform medium work, the ALJ ultimately determined he would therefore be able to perform light or sedentary work at the least.
Despite this, Plaintiff claims that the ALJ relied upon testimony given in response by VE Simone to an incomplete hypothetical question in making his determination.
In conclusion, the ALJ was correct in his determination of Plaintiff's RFC because he reasonably evaluated all of the relevant evidence and his RFC determination is supported by substantial evidence in the record.
Accordingly, it is hereby:
