Calvert v. SSA, No. 2:2016cv00205 - Document 13 (E.D. Ky. 2018)

Court Description: MEMORANDUM OPINION & ORDER: 1) Commissioner's Motion for Summary Judgment 12 is GRANTED; 2) Plaintiff's Motion for Summary Judgment 10 is DENIED. Signed by Judge Joseph M. Hood on 4/6/2018.(TJZ)cc: COR
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Calvert v. SSA Doc. 13 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON ) ) ) ) ) ) ) ) ) ) ) JENNIFER A. CALVERT, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. Civil Case No. 16-cv-205-JMH MEMORANDUM OPINION & ORDER *** This matter is before the Court on the parties’ crossMotions for Summary Judgment (DE 10, 12) on Plaintiff’s appeal of the Commissioner’s denial of an application for disability insurance benefits.1 The matter having been fully briefed by the parties is now ripe for this Court’s review. I. Plaintiff protectively filed an application for disability insurance benefits (DIB) in July 2013, beginning June 2012 (Tr. 58, 137). 19, alleging Her disability application was denied initially and on reconsideration (Tr. 83-89), and she pursued and Commissioner exhausted (Tr. 1-3, her administrative 6-57). This case remedies before is for ripe the review pursuant to 42 U.S.C. § 405(g). 1 These are not traditional Rule 56 motions for summary judgment. Rather, it is a procedural device by which the parties bring the administrative record before the Court. II. Plaintiff, who was age 38 at the time of her alleged disability onset date and within days of turning forty three years old at the administrative hearing, has a high school education and past relevant work as a human resources assistant, dispatcher, and receptionist (Tr. 36, 47-48, 161). She alleged disability due to several impairments, including degenerative disc disease (Tr. 151). She had a prior history of lower back surgery, including an L3-L5 decompression and fusion for multiple disc herniation (Tr. 221). In 2012, she experienced sharp, stabbing, constant pain running from her low back into the posterolatereal aspect of her left leg and into her left foot as well as paresthesis in her left great toe and thigh and spasms in her left hip and thigh, fatigue, difficulty sleeping, bowel problems, sexual problems, muscle pain, muscle cramps or spasms, low back pain, trouble walking, weakness or numbness, tingling, and depression, as well as reporting that her hip had given out and she had fallen, experiencing issues getting up from a sitting or lying position, and challenges climbing or descending stairs, with symptoms worse when she sat (Tr. 25859). With responding the to return more of symptoms conservative that were treatment, not she adequately underwent an additional lower back procedure for a herniated disc on June 19, 2012—her alleged disability onset date (Tr. 231-32, 253, 255). 2 At a follow up appointment with her surgeon, Ryan Cassidy, M.D., approximately six weeks after her surgery, Plaintiff reported that she had experienced a “complete resolution of her symptoms shortly after surgery,” but was now beginning to feel increased pain in her lower extremities, although not as bad as prior to observed surgery (Tr. tenderness to 231). Dr. Cassidy palpation over her examined left her and trochanter, downgoing Babinksi bilaterally, and the absence of Hoffman signs and clonus bilaterally (Tr. 244-46). She had normal objective findings on examination, lower back x-rays showed no hardware complications, and the doctor stated that the return of some symptoms at six-to-eight weeks post-op was not uncommon, and likely due to ongoing prescribed a muscle encouraged Plaintiff scar tissue relaxant to and increase (Tr. an her 238, 247-48). anti-inflammatory activities as He and tolerated (Tr. 248). She was seen again in October 2012 for a three-month follow up, at which time objective clinical findings were again unremarkable Plaintiff other than lower reported some hip back and tenderness leg pain, (Tr. but 244-45). declined to schedule a follow up appointment because she was doing well, felt like she continued to improve, and just wanted to be seen on an as-needed basis (Tr. 245). Plaintiff did not see Dr. Cassidy again until July 2013 (Tr. 282-83). At that visit, she reported that she had been 3 doing well until the prior month, when she began experiencing some lower extremity pain and numbness (Tr. 282-83). On examination, her lower back was non-tender to palpation, she had no neurological deficits, and a straight leg raise test—a method of detecting an underlying herniated disk or compressed nerve root—was negative hardware complications been treating medications (Tr. 282-83). (Tr. symptoms and referred Lower 275, with to back 282-83). Aleve, physical x-rays showed Plaintiff, was who prescribed therapy for a no had new core- strengthening program (Tr. 282-83). The following month, a consulting physician, David Gilbert, M.D., examined proceedings everyday Plaintiff (Tr. pain, 266-71). only helped as part of Plaintiff by rest the administrative reported and frequent significant change of position, and the use of a cane or walker when her back pain was worse (Tr. 266-67). Dr. Gilbert observed that Plaintiff used her upper extremities for leverage when she went from a sitting to standing position and found that Plaintiff had some tenderness to palpation, but otherwise had a normal gait, full strength in her extremities, and no neurological deficits (Tr. 267-68). He opined that Plaintiff was unable to walk more than 50 to 100 feet on a flat surface without discomfort, but could sit for 30 minutes at a time, although she would need to frequently shift positions (Tr. 268-69). 4 In October 2013, Plaintiff had a follow up appointment with Dr. Cassidy (Tr. 279-80). She reported that she was still having some pain in her back, hips, and legs, but was doing better than before surgery (Tr. 279). Physical examination findings were again unremarkable, and Dr. Cassidy did not think she would benefit from any further surgery; he thought her symptoms would continue to improve with time (Tr. 279). In D.O., January reviewed 2014, the state record agency and physician opined Rebecca that Luking, Plaintiff had abilities consistent with a range of light work (Tr. 74-76). Thereafter, primary care in August physician, 2014, Becky Plaintiff McGilligan, reported M.D., that to her another doctor, Dr. Justin Kreuer, had performed a nerve block for back pain, but it did not help (Tr. 309). Dr. McGilligan made an orthopedic spine referral (Tr. 311), and Plaintiff saw Michael Rohmiller, M.D., the following month (Tr. 384-85). On examination, Dr. Rohmiller found that she had downgoing toes with Babinksi, no ankle clonus bilaterally, no muscle atrophy, 5/5 strength in the right hip, flexor, quadriceps, and anterior tibialis, and 4/5 strength on the left (Tr. 385). She had some lower back tenderness and a positive straight leg raise test on the left, negative on the right (Tr. 385). Dr. Rohmiller ordered a lower back CT scan, and Plaintiff had a follow up appointment that same month (Tr. 383, 386). The CT scan showed no evidence 5 of hardware failure, and Dr. Rohmiller also reviewed and agreed with an April 2014 MRI report, which noted a small central disc bulge at one level and a small foraminal protrusion at another level (Tr. 383, 385). He found that Plaintiff was “doing well” on Flexeril (a muscle relaxant) and Ultram (tramadol, a pain reliever), and encouraged her to avoid further surgery (Tr. 383). Plaintiff saw Dr. Rohmiller again in late October 2014, stating that medications she (Tr. was not 391). The getting doctor much relief recommended from trying her facet blockers and radiofrequency ablation (Tr. 391). On October 31, 2014, Dr. McGilligan completed a medical source statement in which she opined that, due to Plaintiff’s degenerative disc disease, Plaintiff could only stand for 15 minutes at a time, sit for 15 minutes at a time, could not even lift five pounds occasionally, and could never bend, stoop, balance, or climb ladders or stairs (Tr. 388-89). Dr. McGilligan further opined that Plaintiff would need to take unscheduled breaks every 15 minutes and would miss more than four days a month of work on average (Tr. 388-89). The record contains three additional treatment records from Dr. McGilligan after that date. Plaintiff saw her twice in January 2015 for issues unrelated to her back pain, although her Flexeril prescription was refilled at the latter visit (Tr. 40009). Then, in a June 2015 treatment note—the last in the record— 6 Dr. McGilligan indicated that Plaintiff’s pain was “controlled” with tramadol Plaintiff (Tr. was 395). “fully Dr. McGilligan functional” in further all stated activities of that daily living while on the medication and experienced “minimal” side effects (Tr. 395). Plaintiff was going to the gym four time a week and trying to lose weight, and she and her doctor discussed getting regular exercise, including weightlifting (Tr. 395, 397). At her September 2015 administrative hearing, Plaintiff testified that her symptoms had actually gotten worse since her last back surgery, that her inability to sit still due to pain prevented her from working in a sedentary capacity, and that she had difficulty thinking medication (Tr. 37). straight due to the pain and pain She testified that she had returned to work in a receptionist/customer care position after the alleged onset day but that attendance (Tr. 35). her employment was terminated for poor She described how she would work a day and, then, that night would be in pain and unable to go to work the next day, such that she was missing two to three days of work a week (Tr. 35-36). She testified that, because of weakness in her hips, legs, feet, and arms, she had fallen in the shower, is unable to cook if she has to stand at the stove but can microwave things quickly, cannot go up and down the stairs to do laundry or carry the laundry, can sit on the sofa 7 and help fold dishwasher, laundry, cannot cannot push a vacuum cart or or load remain or very unload long at the the grocery, can float in a pool but not participate in other pool activities, cannot sleep for more than two hours at a time and no more than three to three and a half hours every night, and cannot find any position in which she is comfortable (Tr. 4043). She testified that she uses a walker (Tr. 43) and uses Tramadol, Flexeril, and over-the-counter medication such as Aleve to help with chronic pain (Tr. 43-45). The ALJ found that Plaintiff’s lumbar spine degenerative disc disease with radiculopathy was a severe impairment and assessed a residual functional capacity (RFC) for a range of sedentary work (Tr. 11, 13). More specifically, the ALJ found Plaintiff could bilaterally; occasionally alternate push/pull between sitting using and foot standing controls at will, provided she is not off task for more than 10% of the workday; occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; occasionally stoop, crouch, kneel, and crawl; never be exposed to work involving extreme cold, exposure to vibration, workplace hazards, or operation of commercial motorized vehicles (Tr. 13). The ALJ considered the testimony of a vocational expert to find that, with this RFC, Plaintiff remained capable of performing past relevant work or, in the alternative, could perform other work existing in significant 8 numbers in the national economy (Tr. 19-21). Thus, the ALJ determined that Plaintiff was not disabled within the meaning of the Social Security Act (Act) (Tr. 21). III. In determining whether an individual is disabled, Administrative Law Judge (“ALJ”) uses a five step analysis: 1. An individual who is working and engaging in substantial gainful activity is not disabled, regardless of the claimant’s medical condition. 2. An individual who is working but does not have a “severe” impairment which significantly limits his physical or mental ability to do basic work activities is not disabled. 3. If an individual is not working and has a severe impairment which “meets the duration requirement and is listed in appendix 1 or equal to a listed impairment(s)”, then he is disabled regardless of other factors. 4. If a decision cannot be reached based on current work activity and medical facts alone, and the claimant has a severe impairment, then the Secretary reviews the claimant’s residual functional capacity and the physical and mental demands of the claimant’s previous work. If the claimant is able to continue to do this previous work, then he is not disabled. 5. If the claimant cannot do any work he did in the past because of a severe impairment, then the Secretary considers his residual functional capacity, age, education, and past work experience to see if he can do other work. If he cannot, the claimant is disabled. 9 an Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)). IV. When reviewing a decision made by the ALJ, the Court may not “‘try the case de novo, resolve conflicts in evidence, or decide questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. as long as conclusive 2007)). they “The are ALJ’s supported findings by are substantial evidence.” 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations omitted). “‘means such relevant evidence as a Substantial evidence reasonable mind might accept.’” Foster, 279 F.3d at 353 (quoting Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1991)). V. Ultimately, Plaintiff argues that the ALJ’s opinion is in error because his ultimate RFC finding does not directly correspond to the limitations identified in the opinions of Drs. McGilligan, Gilbert, and Luking. See Pl.’s Br. 11 (“ALJ Gollin did not appear to rely on any of the medical sources.”), id. at 17 (“[T]he ALJ disregarded their opinions to a degree that would justify enough his to own non-disabling undermine the RFC.”)). ALJ’s 10 That, assessment. alone, See 20 is not C.F.R. § 404.1546(c) (stating an ALJ is responsible for assessing RFC); Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 578 (6th Cir. 2009) (unpublished) (“Although physicians opine on a claimant’s residual functional capacity to work, ultimate responsibility for capacity-to-work determinations belongs to the Commissioner.”); Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439-41 (6th Cir. 2010) (unpublished) (affirming where the ALJ’s RFC opinions finding of substantial opinions, did record). evidence giving not fully Rather, supports gave adopt the the “limited any Court ALJ’s weight” of the medical considers whether assessment to Dr. of these McGilligan’s opinion, “partial weight” to Dr. Gilbert’s opinion, and “some weight” to Dr. Luking’s opinion (Tr. 18-19) First, the ALJ provided valid reasons supported by evidence for discounting Dr. McGilligan’s opinion of Plaintiff’s ability to do work, even while recognizing her as a treating source. He declined to give her opinion controlling weight because observed that Dr. McGilligan provided little support for the extreme limitations included in her opinion, which appeared to conflict with the medical record, including her own treatment notes (Tr. 19). See 20 C.F.R. § 404.1527(c)(2)-(4) (ALJ must give “good reasons” for weight given supportability and consistency with the record as a whole are factors an ALJ must consider); Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 652 (6th Cir.2006) (en 11 banc); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (ALJ may discount a treating physician’s opinion if the ALJ provides good reasons supported by substantial evidence); Social Security Ruling (SSR) 96-2p, 1996 WL 374188, at *5 (stating that ALJ’s decision “must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that weight”). As the Commissioner points out, while the ALJ noted that Dr. McGilligan prescribed narcotics to Plaintiff for pain relief, Plaintiff had primarily seen Dr. McGilligan for acute medical issues such as abdominal pain or ear pain (Tr. 15; see Tr. 309, 313, 319, 323, 405). The ALJ also cited a September 2013 treatment note in which Dr. McGilligan found Plaintiff had normal range of motion and no significant neurological deficits, and a June 2015 treatment note in which she stated that tramadol was helping with Plaintiff’s symptoms, allowing her full functionality in all activities of daily living, which included going to the gym four times a week (Tr. 15, 19; see Tr. 325, 395-99). The ALJ reasonably found this record inconsistent with Dr. McGilligan’s opinion, which indicated that Plaintiff could only stand or sit for 15 minutes at a time, could not lift five pounds even occasionally, and would need to take unscheduled breaks every 15 minutes (Tr. 388-89). 12 Nor does the Court find merit to Plaintiff’s criticisms of the ALJ’s received, opinion which limitations of the which the ALJ Dr. “conservative” viewed as McGilligan at treatment odds proposed. with (Tr. that the she extreme 388-39, 395, 397.) With respect to Dr. McGilligan [see Pl.’s Br. 13-14], the Court agrees with the Commissioner that it was both accurate and reasonable for the ALJ to observe that a June 2015 treatment note indicated that “conservative pain management [i.e., prescription medication] was allowing her to complete her daily activities with no significant difficulty” (Tr. 19; see Tr. 395), see 20 C.F.R. § 404.1527(c)(2)(ii) (“We will look at the treatment the source has provided . . . .”), as well to recognize their discussions of her four visits to the gym every week and the potential for weightlifting. While Dr. McGilligan referred Plaintiff to an orthopedic surgeon, which the ALJ acknowledged (Tr. 15), the specialist did not opine that her back impairment precluded work. See 20 C.F.R. § 404.1527(c)(5) (“We generally give more weight 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.”). Plaintiff’s efforts to minimize Dr. McGilligan’s own words—that Plaintiff was “fully functional in all ADLs medication” (Tr. 19, 395)—are not persuasive. 13 while on the Dr. McGilligan said what she said, and the ALJ did not err when he weighed that as he did in his analysis. See Ulman, 693 F.3d at 713. Similarly, substantial evidence supports the ALJ’s decision to give only “some weight” to Dr. Luking’s opinion that Plaintiff had abilities consistent with a range of light work, he observed that the opinion was generally consistent with the overall record documenting and included “relatively reference benign medical to specific findings, records including intact gait, intact strength, and no substantial neurological deficits” (Tr. 18; see Tr. 74-76, 279-80, 282-83). See 20 C.F.R. § 404.1527(e)(2)(i) (stating that reviewing state agency consultants are “highly qualified physicians, psychologists, and other medical specialists who are also experts in Social Security disability evaluation”); Watts v. Comm’r of Soc. Sec., 179 F. App’x 290, 294 (6th Cir. 2006) (unpublished) (finding that the opinions of the state agency medical consultants provided substantial evidence for the ALJ’s RFC assessment). In fact, the ALJ reasonably tempered the opinion in Plaintiff’s favor, finding the overall evidence more consistent with a range of sedentary rather than light work given Plaintiff’s surgical history (Tr. 18). The rationales ALJ for also the provided partial adequately weight given detailed to the and valid opinion of examining physician, Dr. Gilbert (Tr. 19). See Stacey v. Comm’r 14 of Soc. Sec., 451 F. App’x 517, 519 (6th Cir. 2011) (unpublished) (“[T]he ALJ’s decision still must say enough ‘to allow the appellate court to trace the path of his reasoning.’” (quoting Diaz v. Chater, 55 F.3d 300, 307 (7th Cir.1995)). Notably, the ALJ observed based on the record that Dr. Gilbert’s conclusions, such as Plaintiff’s inability to walk more than 50 to 100 feet at a time, and the potential need for an assistive device, appeared to conflict with Dr. Gilbert’s own objective examination findings, which were generally unremarkable (Tr. 19; see Tr. 266-71). See 20 C.F.R. § 404.1527(c)(3)-(4). The substantial evidence supports the ALJ’s conclusion that these restrictions reporting and than needs from were the based Dr. more Gilbert’s on Plaintiff’s actual self- examination findings (Tr. 19; see Tr. 266-67). See Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 564 (6th Cir. 2014) (unpublished) (“[T]he ALJ is not required to simply accept the testimony of a medical examiner based solely on the claimant’s self-reports of symptoms, but instead is tasked with interpreting medical opinions in light of the totality of the evidence.”); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 391 (6th Cir. 2004). Ultimately, the Court concludes that the ALJ’s analysis of the opinion evidence of these physicians and, by extension, the ALJ’s ultimate RFC assessment were well reasoned and supported 15 by substantial evidence. The decision will be affirmed in this regard. V. Finally, the Court concludes that the ALJ’s assessment of Plaintiff’s supported subjective by articulated complaints complaints, substantial several in his regulatory factors. reasons analysis which for them, Pointedly, evidence. discounted the discounting which were her is ALJ subjective consistent with the (Tr. 14-18;) SSR 96-7p, 1996 WL 374186, at *2 (stating an ALJ must give “specific reasons for the finding on credibility, supported by the evidence in the case record, and must be individual sufficiently and to any specific subsequent to make reviewers clear the to the weight the adjudicator gave to the individual’s statements and the reasons for that weight”), superseded by SSR 16-3p, 2016 WL 1237954 (Mar. 28, 2016). The Commissioner has summed up the ALJ’s succinctly: The ALJ recognized Plaintiff had undergone several surgical procedures on her back and frequently reported pain to medical providers, but he also noted that on physical examination, Plaintiff failed to “demonstrate[] signs typically associated with chronic, severe pain such as muscle atrophy, spasm, rigidity, or tremor” (Tr. 17). See 20 C.F.R. § 404.1529(a) (“[S]tatements about your pain or other 16 analysis symptoms will not alone establish that you are disabled.”). Rather, outside of muscle tenderness and inconsistent reports of left lower extremity weakness, objective medical findings were relatively benign and “further tempered by recent reports made by the claimant to her primary provider of essentially intact daily functioning” (Tr. 17). As explained by the ALJ, that June 2015 treatment note from Dr. McGilligan—the only record from 2015 where the primary purpose of the visit was Plaintiff’s back pain—was hard to square with Plaintiff’s hearing testimony, just three months later, “which essentially described debilitating pain with little to no improvement with treatment (Tr. 16-18). The Court declines to reweigh the evidence as Plaintiff requests and defers to the ALJ’s credibility determination which is inherent in this analysis. See Ulman, 693 F.3d at 713; 20 C.F.R. § 404.1529(a), (d) (ALJ should consider whether symptoms are consistent with the objective medical evidence and whether there are conflicts between claimant’s statements and the rest of the evidence); Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (“[A]n ALJ’s credibility determinations about the claimant are to be given great weight.”). The decision will be affirmed in this regard. Accordingly, IT IS ORDERED: (1) That the Commissioner’s Motion for Summary Judgment [DE 12] is GRANTED; (2) That Plaintiff’s Motion for Summary Judgment [DE 10] is DENIED. 17 This the 6th day of April, 2018. 18