Opinion
Civil Action 2:13-cv-00806
11-06-2014
Joseph W. Black, Plaintiff v. Carolyn W. Colvin, Commissioner of Social Security, Defendant
ORDER
Plaintiff Joseph W. Black brings this action under 42 U.S.C. §§405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security denying his application for Social Security disability insurance and Supplemental Security Income benefits. This matter is before the Magistrate Judge on the parties' cross-motions for summary judgment.
Summary of Issues. Plaintiff alleges that he is disabled as a result of degenerative disc disease with a pinched nerve, arthritis in both knees with bilateral knee pain, a mood disorder not otherwise specified, anxiety, depression, ADHD, a below average IQ, and a lisp resulting in very slow speech.
Plaintiff argues that the decision of the Commissioner denying benefits should be reversed because:
• The administrative law judge's finding that Black could perform a limited range of light work is not based on substantial evidence because there is no assessment from any examining physician to support this conclusion; and,
• The administrative law judge's reasons for rejecting Dr. Linscott's opinion are not supported by substantial evidence.
Procedural History. Plaintiff Joseph W. Black filed his application for disability insurance benefits on May 9, 2009, alleging that he became disabled on February 23, 2009, at age 30, by degenerative disc disease, knee pain and attention deficit hyperactivity disorder ("ADHD"). (R. 200, 232.) The application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. On December 11, 2011, an administrative law judge held a hearing at which plaintiff, represented by counsel, appeared and testified. (R. 81.) A vocational expert also testified. On January 27, 2012, the administrative law judge issued a decision finding that Black was not disabled within the meaning of the Act. (R. 24.) On June 17, 2013, the Appeals Council denied plaintiff's request for review and adopted the administrative law judge's decision as the final decision of the Commissioner of Social Security. (R. 1-4.)
Age, Education, and Work Experience. Joseph W. Black was born October 14, 1978. (R. 200.) He has a high school education. He has a certificate in HVAC. (R. 23940.) He has worked as a bagger, cook, dishwasher, air conditioning installer, a laborer with a temporary agency, and stocker in a retail store. He last worked February 23, 2009. (R. 232.)
Plaintiff's Testimony. The administrative law judge fairly summarized Black's testimony as follows:
(R. 20.) Plaintiff testified that his back pain started at age 17 and has gradually worsened. He suffered from knee pain likely the result of arthritis. He can only stand for 15-20 minutes. He can sit for 20-30 minute increments. His pain increased throughout the day and after performing household chores. Walking also caused his pain to flare up. Although it was not prescribed a by a doctor, plaintiff used a cane. In 2009, he received a cortisol injection for a torn ligament in his knee. When his knees flare up, they swell two to three times their normal size. He had severe muscle spasms in his back which caused him to fall to the ground if he was standing or walking.
The claimant testified that he was disabled due to back pain and knee pain. The claimant also testified that he had debilitating flare-ups of anxiety, depression, and ADHD. When asked to describe his flare-ups, the claimant testified that he would have mild anxiety and depression flare-ups every six to every eight to ten weeks that resulted in debilitating depression, social isolation, and suicidal ideation which lasted for two to three months. The claimant was unable to explain whet he meant by an ADHD flare-up. . . . The claimant testified that his pain felt like he was being "hit with a 20 pound sledgehammer by a professional body builder."
Plaintiff also testified that he read on a fifth grade level and wrote at a sixth grade level. He isolated himself when he experienced anxiety or depression. He socialized by attending Freemason meetings every other week.
After he stopped working in 2009, he moved in with his parents. When he received a medical card, he sought mental health treatment. Paxil has reduced the severity of his anxiety, but his symptoms significantly worsen every eight to ten weeks.
Medical Evidence of Record. The administrative law judge's decision fairly sets out the relevant medical evidence of record. This Report and Recommendation will only briefly summarize that evidence.
Physical Impairments.
Joseph Linscott, D.O. Dr. Linscott, plaintiff's primary care physician, provided Black with follow-up care for his back pain. (R. 308-28, 402-05, 408-12 & 455-61.)
An April 4, 2001 x-ray of plaintiff's lumbar spine was unremarkable. (R. 318.) A June 15, 2001, EMG of plaintiff's lower extremities showed no evidence of neuropathy, myopathy or radiculopathy. (R. 317.) In July 2001, plaintiff was seen by a physical therapist, but physical therapy was ineffective. (R. 324.) An August 1, 2001 MRI of his lumbar spine showed degenerative changes. There was L5-S1 broad-based posterior disc protrusion. There was no nerve impingement. (R. 502.)
A July 13, 2004 x-ray of plaintiff's knee was normal. (R. 315-16.)
Plaintiff presented to the emergency room with complaints of back and/or knee pain on several occasions. (R. 329-68, 413-15, 417-27 & 486-90.) X-rays of plaintiff's left knee taken in 2003 and 2004 were normal. (R. 315-16.)
On July 23, 2009, Dr. Linscott completed a report for the Ohio Department of Jobs and Family Services. Dr. Linscott opined that plaintiff was limited to standing and walking only half an hour out of an eight-hour day. Dr. Linscott found that Black had marked limitations in his abilities to push, pull, and bend. Black had moderate limitations in his abilities to reach and handle. Dr. Linscott believed that plaintiff was unemployable. (R. 471-75.) On November 2, 2010, Dr. Linscott indicated that plaintiff was limited to standing and walking for no more than one hour in an eight-hour day. Black was moderately limited in his ability to make repetitive foot movements. Dr. Linscott also opined that Black was moderately limited with respect to understanding and memory, sustained concentration and persistence, social interaction, and adaption.
Thomas Baker, D.O. On September 5, 2001, Dr. Baker, an orthopedic surgery and sports medicine specialist, evaluated plaintiff for complaints of low back pain with some radiation into his left leg. Dr. Baker concluded that Black did not have true radicular symptoms. His pain was constant in his back. He had no numbness or tingling. His symptoms improved with sitting or lying down. On physical examination, plaintiff was able to rise to the standing position. He was ambulatory without a limp. He could heel and toe walk without weakness. Black complained of pain in the lower lumbar area. Black could forward bend to about 60 degrees and backward bend 20 degrees. He could side bend to the left and right 20 degrees. His deep tendon reflexes were symmetrical and brisk. Dr. Baker reviewed his MRI, which showed evidence of degenerative disc disease in the lumbar area. He diagnosed lumbar sprain and degenerative disc disease. Dr. Baker did not recommend surgery. Plaintiff could be treated with anti-inflammatory medication and possibly lumbar epidural injections. (R. 322-23.)
An April 5, 2008 CT scan of plaintiff's head was normal. (R. 340.)
William Bolz, M.D. On September 2, 2009, Dr. Bolz, a State agency physician, noted that plaintiff only sought treatment for his degenerative disc disease, knee pain and ADHD on a sporadic basis. Dr. Bolz concluded that the evidence did not support a finding of a severe disabling impairment. (R. 390.)
On March 11, 2010, Gerald Klyop, M.D. reviewed the evidence in the file and affirmed the September 16, 2009 assessment. (R. 407.)
Jeffrey C. Hatfield, D.C. On December 16, 2011, Dr. Hatfield, a chiropractor, began treating plaintiff. X-rays revealed that plaintiff had an unlevel hip and pelvis low on the left. He had a mild right rotational subluxation at T6, a mild, right rotational subluxation of C7. Plaintiff had decreased disc height at C6-C7. (R. 522.)
Psychological Impairments.
Laurie Malony, M.A. On May 22, 2001, Ms. Malony, a school psychology assistant, performed a psycho-educational assessment. Black was referred for an assessment by his mother. In the past year, Black had divorced his wife, moved back into his parents' home, and changed jobs. Black struggled with impulsivity, temper outbursts, poor attention, and a low frustration threshold. Black reported difficulty focusing and managing frustration and stress. He had difficulty sleeping and was easily fatigued. He had decreased hunger, work problems, nervousness, difficulty completing tasks and working alone, increased stress levels, irritability, restlessness, and forgetfulness.
His self-report of symptoms was consistent with a moderately severe mental health disorder. Anxiety was prominent as were personality trait difficulties, indicating that he had some life long response styles that negatively impacted his coping skills on a daily basis. On IQ testing, plaintiff demonstrated average range intellectual ability. His verbal ability was better developed that his nonverbal, quantitative, and short-term memory abilities. (R. 300-06.)
Ms. Malony summarized her findings as follows:
(R. 306-07.)
Joe is a young man currently in crisis. He appears to be dealing with anxiety and depression. His coping skills and social/communication skills make his relationships at work and at home more difficult. Joe has a life long history of symptoms consistent with Attention Deficit Hyperactivity Disorder and appears to currently try to self-treat with 11 or more cups of black coffee per day.
He has an early history of speech/language and learning difficulties. His current cognitive functioning varies greatly depending upon the type of reasoning or cognition required. . . . Joe also demonstrates academic learning disabilities in the areas of math calculation (moderate) and basic reading, reading comprehension and written expression (mild). This combination of moderate to severe attention, concentration and focus difficulties with symptoms of anxiety and depression that come and go to varying degrees with short-term memory deficits and learning disabilities would greatly impact Joe's life functioning in learning, working and relationships as has been seen in the past few years without the structure of school in his life. This is especially true without treatment and support. Other life patterns and personality response traits that Joe has developed through the years can further negatively impact his coping as an adult.
Belmont Community Hospital. On October 7, 2008, plaintiff presented at the emergency room with complaints of not feeling like himself. He was diagnosed with depression. (R. 329.)
Sudhir Dubey, PsyD. On June 22, 2009, Dr. Dubey, a psychologist, conducted a disability assessment for the purpose of determining Black's mental health functioning at the request of the Bureau of Disability Determination. On mental status examination, plaintiff described his mood as "okay." He denied tearfulness and symptoms of depression. He denied feeling discouraged. He reported a 15 pound weight loss due to dieting. He reported no changes in his sleep patterns. He denied feelings of guilt, hopelessness and helplessness. His energy level remained unchanged. He denied anhedonia. He denied suicidal or homicidal ideation. He reported feeling anxious about once every two to six months. His symptoms of anxiety included sweating and increased heart rate.
Plaintiff was oriented in all four spheres. He was alert and responsive. He reported trouble concentrating and remembering. On digit span, he was able to recall five numbers forward and three numbers backward. Recall of remote and recent events was normal. He was able to recall two of three objects after a five minute delay. Hishttps://ecf.ohsd.circ6.dcn/cgi-bin/iquery.pl ability to perform simple calculations was in the average range. He could interpret a proverb abstractly.
Black's reported activities of daily living including watching television, reading, playing computer games, and caring for his pet. He could perform daily chores independently, although they took more time. He required assistance with cleaning and laundry from his parents. He was able to bathe and perform personal hygiene adequately. Dr. Dubey diagnosed Black with a mood disorder, not otherwise specified. He assigned plaintiff a Global Assessment of Functioning ("GAF") score of 65.
Dr. Dubey concluded that plaintiff's ability to understand, remember and follow instructions was not impaired and that he could carry out simple, complex and multi-step requests. Black's ability to maintain attention, concentration, persistence and pace to perform simple, repetitive tasks was mildly impaired. Black's ability to relate to others, including coworkers and supervisors, was not impaired. (R. 369-74.)
Patricia Semmelman, Ph.D. On July 14, 2009, Dr. Semmelman, a State agency psychologist, completed a psychiatric review technique. Dr. Semmelman concluded that plaintiff had no restriction of daily activities, no difficulties in maintaining social functioning, and no episodes of decompensation. Plaintiff had only mild difficulties in maintaining concentration, persistence or pace. Dr. Semmelman gave weight to the opinion of the consultative examiner and concluded that there was no evidence of a severe mental health impairment interfering with plaintiff's ability to work. (R. 376-88.)
Terry R. Imar, M.A. On January 18, 2010, Dr. Imar, a psychologist, conducted psychological testing and diagnosed Black with ADHD predominantly inattentive type. Dr. Imar indicated that Black was likely to learn slowly, have problems organizing and completing tasks, and difficulty concentrating. Plaintiff was likely to be impulsive, and his moods might change quickly. He might be more easily angered and irritated with others. (R. 393, 416.)
On February 12, 2010, Marianne Collins, Ph.D. reviewed the evidence in the file and affirmed the September 16, 2009 assessment; however, I could not locate an assessment with that date. (R. 406.)
Consolidated Care. On April 14, 2011, plaintiff began treatment with Consolidated Care. Black reported that he was diagnosed with ADHD, depression and anxiety and that he wanted help obtaining Social Security benefits. (R. 437.)
Administrative Law Judge's Findings.
(R. 15-24.)
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2013.
2. The claimant has not engaged in substantial gainful activity since February 23, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: lumbar disc disease; bilateral knee pain; mood disorder NOS; anxiety; and ADHD, predominantly inattentive type (30 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant's work is limited to: lifting up to 20 pounds occasionally; lifting/carrying up to 10 pounds frequently; standing/walking for
about 6 hours and sitting for up to 6 hours in an 8 hour work day with normal breaks; unlimited pushing or pulling; frequent climbing of ramps or stairs but no climbing of ladders, ropes or scaffolds; frequent balancing, stooping, kneeling, crouching, and crawling; simple, routine, and repetitive tasks in a work environment free of fast paced production requirements involving only simple, work related decisions with few, if any, work place changes; and occasional contact with co-workers, supervisors, and the public.
6. The claimant is capable of performing past relevant work as a hand packager, DOT # 559.687-074, an unskilled, light job and cleaner, DOT # 363.687-014, an unskilled, light job. This does not required the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404/1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from February 23, 2009, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).
Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive. . . ." Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976). The Commissioner's findings of fact must be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining whether the Commissioner's decision is supported by substantial evidence, the Court must "'take into account whatever in the record fairly detracts from its weight.'" Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and Human Services, 755 F.2d 495, 497 (6th Cir. 1985).
Plaintiff's Arguments. Plaintiff argues that the decision of the Commissioner denying benefits should be reversed because:
• The administrative law judge's finding that Black could perform a limited range of light work is not based on substantial evidence because there is no assessment from any examining physician to support this conclusion. Plaintiff maintains that the administrative law judge improperly substituted her own opinion for the medical expert. Plaintiff argues that the residual functional capacity formulated by the administrative law judge is not supported by an opinion from a treating physician. The administrative law judge improperly indicated that Dr. Linscott had not referred Black to an orthopedic specialist or pain management specialist, ordered physical therapy or an updated MRI, or recommended epidural injections. Plaintiff maintains that Dr. Linscott did make referrals and that Black attempted physical therapy. Once he obtained his medical card, Black sought additional medical treatment from a chiropractor. Dr. Linscott referred Black to Dr. Baker, who diagnosed degenerative disc disease. In October 2002, Dr. Kovac recommended that
plaintiff a consultation with a neurosurgeon. Plaintiff argues that his inability to sit for no more than one hour per day precludes sedentary work. Plaintiff also argues that the administrative law judge erred in rejecting the opinion of Dr. Imar. The administrative law judge improperly found that Black lacked credibility in order to disregard every medical report.
• The administrative law judge's reasons for rejecting Dr. Linscott's opinion are not supported by substantial evidence. Plaintiff argues that the administrative law judge failed to properly evaluate the Dr. Linscott's opinion under the factors set forth in 20 C.F.R. § 404.1527(d)(2). Plaintiff maintains that the administrative law judge did not explain her application or the factors or determine how much weight should be afforded to Dr. Linscott's opinion. Plaintiff argues Dr. Linscott's functional assessment was supported by objective evidence, including the result of x-rays, an MRI, laboratory testing and positive findings on physical examination.
Analysis. Treating Doctor: Legal Standard. A treating doctor's opinion on the issue of disability is entitled to greater weight than that of a physician who has examined plaintiff on only one occasion or who has merely conducted a paper review of the medical evidence of record. 20 C.F.R. § 404.1527(d)(1). Hurst v. Schweiker, 725 F.2d 53, 55 (6th Cir. 1984); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054 (6th Cir. 1983). The Commissioner's regulations explain that Social Security generally gives more weight to a treating doctors' opinions because treators are usually "most able to provide a detailed, longitudinal picture" of the claimant's medical impairments. 20 C.F.R. § 404.1527(d)(2). When the treating doctor's opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record" the Commissioner "will give it controlling weight. " Id.
The Commissioner's regulations define "medical opinions" as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). Treating sources often express more than one medical opinion, including "at least one diagnosis, a prognosis and an opinion about what the individual can still do." SSR 96-2p, 1996 WL 374188, at *2. When an administrative law judge fails to give a good reason for rejecting a treator's medical opinion, remand is required unless the failure does not ultimately affect the decision, i.e., the error is de minimus. Wilson, 378 F.3d at 547. So reversible error is not committed where the treator's opinion "is patently deficient that the Commissioner could not possibly credit it;" the administrative law judge's findings credit the treator's opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R. § 1527(d)(2) but does not technically meet all its requirements. Id. See, Gayheart v. Commissioner of Social Security, 710 F.3d 365, 38o (6th Cir. 2013).
Even though a claimant's treating physician may be expected to have a greater insight into his patient's condition than a one-time examining physician or a medical adviser, Congress specifically amended the Social Security Act in 1967 to provide that to be disabling an impairment must be "medically determinable." 42 U.S.C. §423(d)(1)(A). Consequently, a treating doctor's opinion does not bind the Commissioner when it is not supported by detailed clinical and diagnostic test evidence. Warner v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir. 2004); Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779-780 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1983); Halsey v. Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971); Lafoon v. Califano, 558 F.2d 253, 254-256 (5th Cir. 1975). 20 C.F.R. §§404.1513(b), (c), (d), 404.1526(b), and 404.1527(a)(1).
Section 404.157(a)(1) provides:
You can only be found disabled if you are unable 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. See §404.1505. Your impairment must result from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. See §404.1508.
The Commissioner's regulations provide that she will generally "give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you." 20 C.F.R. § 404.1527(d)(1). When a treating source's opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight." 20 C.F.R. § 404.1527(d)(2).
When the treating source's opinion is well-supported by objective medical evidence and is not inconsistent with other substantial evidence, that ends the analysis. 20 C.F.R. § 404.1527(c)(2); Social Security Ruling 96-2p. Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013). The Commissioner's regulations require decision-makers "to provide 'good reasons' for discounting the weight given to a treating-source opinion. [20 C.F.R.] § 404.1527(c)(2)." Gayheart, 710 F.3d at 375.
Social Security Ruling 96-2p provides, in relevant part:
6. If a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted.
Section 404.1527(c)(2) provides, in relevant part: "We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."
The Commissioner has issued a policy statement, Social Security Ruling 92-6p, to guide decision-makers' assessment of treating-source opinion. It emphasizes:
The focus at this step is solely on whether the treating-source opinion is well-supported by objective medical evidence and not inconsistent with other substantial evidence. In making this determination the factors for assessing the weight to give to the medical opinions of any medical source, 20 C.F.R. § 404.1527(c), are not used. These come into play only when there are good reasons not to give the treating-source opinion controlling weight. 20 C.F.R. § 404.1527(c)(2) ; Gayheart, above,710 F.3d at 376, 2013 WL 896255, *10.
1. A case cannot be decided in reliance on a medical opinion without some reasonable support for the opinion.
2. Controlling weight may be given only in appropriate circumstances to medical opinions, i.e., opinions on the issue(s) of the nature and severity of an individual's impairment(s), from treating sources.
3. Controlling weight may not be given to a treating source's medical opinion unless the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques.
4. Even if a treating source's medical opinion is well-supported, controlling weight may not be given to the opinion unless it also is "not inconsistent" with the other substantial evidence in the case record.
5. The judgment whether a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record requires an understanding of the clinical signs and laboratory findings and what they signify.
6. If a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted.
7. A finding that a treating source's medical opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be entitled to deference and be adopted by the adjudicator.
Section 404.1527(c)(2) provides, in relevant part:
(Emphasis added.)
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(I) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the opinion
If there are good reasons to find that the treating-source opinion is not controlling, then the decision-maker turns to evaluating all the medical source evidence and determining what weight to assign to each source, including the treating sources. The Commissioner's regulations require the decision-maker to considers the length of the relationship and frequency of examination; nature and extent of the treatment relationship; how well-supported the opinion is by medical signs and laboratory findings; its consistency with the record as a whole; the treating source's specialization; the source's familiarity with the Social Security program and understanding of its evidentiary requirements; and the extent to which the source is familiar with other information in the case record relevant to decision. 20 C.F.R. § 404.1527(c)(1) through (6). Subject to these guidelines, the Commissioner is the one responsible for determining whether a claimant is disabled. 20 C.F.R. § 404.1527(e).
Even when the treating source-opinion is not controlling, it may carry sufficient weight to be adopted by the Commissioner:
SSR 96-2p.
Adjudicators must remember that a finding that a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to "controlling weight," not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.
The case law is consistent with the principals set out in Social Security Ruling 96-2p. A broad conclusory statement of a treating physician that his patient is disabled is not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). For the treating physician's opinion to have controlling weight it must have "sufficient data to support the diagnosis." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536, 538 (6th Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). The Commissioner may reject the treating doctor's opinions when "good reasons are identified for not accepting them." Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); Wilson v. Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004). These reasons must be "supported by the evidence in the case record, and 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." Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5; Rogers v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007). This procedural requirement "ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).Moreover, the conflicting substantial evidence "must consist of more than the medical opinions of nontreating and nonexamining doctors." Gayheart, 710 at 377. Even when the Commissioner determines not to give a treator's opinion controlling weight, the decision-maker must evaluate the treator's opinion using the factors set out in 20 C.F.R. § 404.1527(d)(2). Wilson, 378 F.3d at 544; Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There remains a rebuttable presumption that the treating physician's opinion "is entitled to great deference." Rogers v. Commissioner of Social Security, 486 F.3d at 242; Hensley, above. The Commissioner makes the final decision on the ultimate issue of disability. Warner v. Commissioner of Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human Services, 980 F.2d 1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v. Schweiker, 667 F.2d 954, 958 n.1 (11th Cir. 1982).
Treating Doctor and Residual Functional Capacity: Discussion. The administrative law judge stated:
(R. 22-23.)
I find that Dr. Linscott's opinion is not supported by the evidence in the record. In fact, Dr. Linscott's opinion is contradicted by the record especially considering the claimant's daily activities, which include watching television, playing computer games, performing household chores, driving, fishing, and attending social events including meetings at his Masonic lodge. Apparently, the claimant sits for more than an hour while engaging in the aforementioned activities. In addition, Dr. Linscott's opinion is conclusory with little or no explanation of the evidence he relied on in forming his opinion. Dr. Linscott's treatment notes were also
not helpful or illuminating since he merely recited the claimant's allegations and prescribed the claimant non-narcotic pain medication despite the claimant's extreme allegations of pain. It should be noted that Dr. Linscott has not ordered physical therapy, an updated MRI, or recommended epidural injections despite opining that the claimant is unable to sit or stand for more than one hour in a normal workday. In addition, Dr. Linscott's opinion appears to rest at least in part on an assessment of impairments outside the doctor's area of expertise, as Dr. Linscott is not an orthopedic specialist or psychiatrist. Lastly, Dr. Linscott apparently relied quite heavily on the subjective report of symptoms and limitations provided by the claimant, and seemed to uncritically accept as true most, if not all, of what the claimant reported. Yet, as explained elsewhere in this decision, there exist good reasons for questioning the reliability of the claimant's subjective complaints especially since the claimant has a history of exaggerating his symptoms. (EX 6F, pg 5). I give Dr. Linscott's opinion little weight.
Here, substantial evidence supports the administrative law judge's determination that plaintiff retains the physical ability to perform a reduced range of work having light exertional demands and that the opinion of Dr. Linscott, to the contrary, was not entitled to deference because it was based on Black's subjective complaints rather than objective medical findings. Dr. Linscott's opinion that plaintiff could only stand or walk for half an hour in an eight hour day is inconsistent with the record as a whole and not supported by his own treatment notes. Plaintiff maintains that the administrative law judge failed to recognize that Dr. Linscott made referrals to specialist and ordered physical therapy. Even if Dr. Linscott made referrals to specialists and to physical therapy, the administrative law judge's conclusion that plaintiff's treatment history and objective findings do not support the marked limitations suggested by Dr. Linscott. Dr. Linscott reviewed the evidence from Dr. Baker and the physical therapist, and these records do not support the opinions put forth by Dr. Linscott.
The administrative law judge concluded that Black retained the residual functional capacity to perform a reduced range of light work. Plaintiff could lift up to 20 pounds occasionally and lift and/or carry 10 pounds frequently. He could stand or walk for about 6 hours in an eight hour day. He could also sit for 6 hours in an eight hour day. He was unlimited in his ability to push and pull. He could never climb ladders, ropes or scaffolds. Plaintiff was limited to work involving simple, routine, and repetitive tasks that did not require fast-paced production requirements. He was also limited to work that had simple, work-related decisions with few, if any, work place changes. Plaintiff could tolerate occasional contact with co-workers, supervisors and the public. (R. 19).
To formulate Black's residual functional capacity, the administrative law judge relied on objective medical findings in the record and the course of plaintiff's medical treatment:
(R. 20.) Contrary to plaintiff's argument, it is the responsibility of the administrative law judge to determine a claimant's residual functional capacity, not that of a physician. See 20 C.F.R. §§ 404.1520(e), 416.920(e); Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004). The administrative law judge's residual functional capacity assessment is supported by substantial evidence, and she was not required to adopt the limitations articulated by Dr. Linscott.
While the claimant's 2001 MRI revealed disc protrusions, they did not cause spinal stenosis (EX 28F, pg 1). Minimal posterior displacement was noted at the left S1 nerve root within the canal but the minimal displacement did not result in any spinal or foraminal stenosis. Id.
The x-rays of the claimant's knees performed in 2003 and 2004 were interpreted to be normal and there was no evidence that he had arthritis. (EX 2F, pgs 8). Lastly, the claimant's EMG studies were interpreted to be normal. (EX 2F, pg 17). Medical signs from the claimant's physical examinations were even more unimpressive. A typical example is found in a note concerning an emergency department visit on June 17, 2009 when he was seen for complaints of bilateral knee and back pain. The
attending physician examined the claimant's back and found no redness, no warmth, normal muscle strength, and no evidence of neurological deficits. (EX 5F, pgs 3-4). Examination of the claimant's knees revealed no redness, swelling, effusions or warmth, and he showed full flexion and extension. (EX 5F, pg 2). The attending physician's only conclusion was that the claimant's pain was related to his weight. (EX 5F, pg 3).
Further, the claimant's medical treatment history is inconsistent with his extreme allegations of bilateral knee and back pain. The claimant's intermittent treatment has been essentially routine and conservative in nature. Surgery was not recommended by Dr. Baker in 2001. (EX 2F, pg 15). The claimant was discharged from physical therapy after only two sessions in 2001 and has not had physical therapy in the subsequent ten years despite his allegations of extreme pain. The claimant's treatment since his alleged onset date has consisted of taking muscle relaxers and non-narcotic pain medication prescribed by his family physician.
From a review of the record as a whole, I conclude that there is substantial evidence supporting the administrative law judge's decision denying benefits. Accordingly, the decision of the Commissioner of Social Security is AFFIRMED; plaintiff's motion for summary judgment is DENIED and defendant's motion for summary judgment is GRANTED.
s/Mark R. Abel
United States Magistrate Judge