Opinion
Case No. 3:12-cv-267
08-26-2013
WILLIAM C. DEAN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILTY FINDING IS FOUND
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND
(2) THIS CASE IS CLOSED UPON ENTRY OF JUDGMENT
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB"). (See Administrative Transcript ("Tr") (Tr. 505-521) (ALJ's decision).
I.
Plaintiff William C. Dean filed an application for DIB on March 11, 2004, alleging a disability onset date of December 31, 2003, due to cervical disc disease and depressive disorder. (Tr. 510). Plaintiff's application was denied initially and on reconsideration. (Tr. 13).
Plaintiff's initial hearing was held on August 14, 2006. (Id.) Plaintiff appeared with counsel and testified. (Id.) ALJ Daniel Shell issued an unfavorable decision in February 2007. (Tr. 10-24). Plaintiff then appealed the decision to the Appeals Council which affirmed the decision on June 20, 2008. (Tr. 8). Plaintiff filed his complaint in this Court on July 23, 2008. On July 9, 2009, Magistrate Judge Ovington remanded this case for another hearing, finding that the ALJ failed to apply the correct legal standard and his factual conclusions were not supported by substantial evidence. (Tr. 530-551, 552-554).
Plaintiff had a second hearing on July 12, 2010 with ALJ James Knapp. Plaintiff testified with counsel and two medical experts. (Tr. 505). ALJ Knapp issued an unfavorable decision on July 19, 2010. Specifically, ALJ Knapp found that Plaintiff retained the residual functioning capacity ("RFC") to perform a reduced range of light exertional work. (Tr. 514). Mr. Dean then appealed to the Appeals Council and the Appeals Council denied his request for review on June 7, 2012. (Tr. 5-8).
A Residual Functioning Capacity ("RFC") is the most that you can still do despite your limitations. 20 C.F.R. § 404.1545(a)(1).
Light work includes lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. 4004.1657(b).
Plaintiff was fifty years old at the time of the second ALJ's decision. (Tr. 808). Plaintiff completed eleventh grade and has past work experience as a shipping manager. (Tr. 819).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2009.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of December 31, 2003 through his date last insured of December 31, 2009 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: 1) cervical degenerative disc disease: and 2) depressive disorder NOS (not otherwise specified) (20 CFR 404.1520(20)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and 404.1526).
5. After careful consideration of the entire record, the ALJ finds that, through the date insured, the claimant lacked the residual functioning capacity (RFC) to perform greater than a limited range of medium work as defined in 20 CFR 404.1567(c). More specifically, he lacked the RFC to: 1) lift more than 10 pounds frequently or 20 pounds occasionally; 2) crawl or reach above shoulder level more than occasionally; 3) climb ladders or scaffolds; 4) work on unprotected heights or around moving machinery; 5) have contact with the public; 6) have greater than occasional contact with supervisors or coworkers; 7) do other than simple repetitive tasks with no complex instructions; or 8) do other than low stress work activity (i.e., do no job involving fixed production quotas or otherwise involving above average pressure for production, work that is other than routine in nature, or work that is hazardous).
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 1, 1960 and was 49 years old, and was classified as a younger individual on the date last insured (20 CFR 404.1563).
8. The claimant has limited education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the dated last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 1569(a)).(Tr. 509-521).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from December 31 2003, the alleged onset date, through December 31, 2009, the date last insured (20 CFR 404.1520(g)).
In sum, the ALJ concluded that prior to July 19, 2010, Plaintiff was not under a disability as defined by the Social Security Regulations and was therefore not entitled to DIB. (Tr. 521).
On appeal the Plaintiff argues that: (1) Dr. Brahms's testimony should have been rejected because counsel was not allowed to cross-examine or impeach him, the ALJ did not give weight to the opinion of Dr. Dursitch, and Dr. Brahms failed to "relate any of his specific testimony to a particular medical report" and; (2) Dr. Pitcher's testimony should have been rejected because it was not based on a thorough reading of the record. This Court will address each argument in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). 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). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is Supported by substantial evidence, a reviewing court must Affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
This appeal focuses on the testimony of the new medical experts, so the Court will focus on that testimony. (Doc. 7 at 9).
Plaintiff testified that he stands 5 feet 11 inches tall and that he weighs 230 pounds. (Tr. 507). He indicated that he has experienced a weight gain of 15 pounds in the last two years. (Id.) He lives with his wife and a 13-year old child. (Id.) He drives a couple of times a week. (Id.)
Plaintiff claims he stopped working due to pain in his back and neck. (Id.) He took morphine for pain. (Id.) Medication reduced his pain by varying degrees, but at best, medication reduced the level of pain 50 percent in the neck and 2 percent in the low back. (Id.) Plaintiff complained that he had constant low back pain that radiated down the back side of his legs into his buttocks. (Id.) He said that his entire leg hurts with pain in the knees and ankles and that his medications did a good job reducing swelling, but that he had swelling in his feet and ankles. (Id.) He had a carpel tunnel condition causing his dominant right hand to lock up. (Id.) He also took medication for breathing problems, and was allergic to pollen and stayed indoors most of the time. (Id.) Plaintiff smoked cigars. (Id.)
Due to depression, Plaintiff said that he often wanted to stay in his room or in bed. Although his medication for depression and anger were effective, the medications made him sleepy. (Id.) The medications helped to calm him and make him more reasonable. (Tr. 508). He saw a psychiatrist, Dr. Atiq, approximately every three months, and he saw a therapist every week. (Id.)
Plaintiff testified that he spent a typical day keeping the house straight, sitting, and looking at the internet. (Id.) Plaintiff does household chores "a little at a time." (Id.) Plaintiff prepared meals and used a self-propelled vacuum cleaner. (Id.) Every two or three weeks he went with his wife to the grocery store. (Id.) Plaintiff's daughter visited him, and he visited her occasionally. (Id.) Plaintiff had no hobbies. Plaintiff mowed the yard once a month; it took him a half hour to mow the grass with a tractor. (Id.) In 2006 or 2007 his doctor prescribed a wheelchair for him, which he uses in his home. (Id.)
Plaintiff said that he could only walk the length of the hearing room, even using a cane. (Id.) He could only stand 30 minutes at a time if he could lean on something. (Id.) He could only sit an hour at a time. (Id.) He could lift 25 pounds but "will hurt and pay for it." (Id.)
Plaintiff also testified that he had problems when he tried physical therapy. (Id.) Although medication helped, his condition has worsened after six years of treatment. (Id.) Plaintiff experienced medication side effects such as bowel issues and memory problems, so his medications required adjustments; he also went to a pain management clinic. (Id.) He was in pain when he did chores for 30 minutes at a time. (Id.) Plaintiff had to lie down on the floor and elevate his feet on the bed several times each morning. (Id.) He could not do a sitting job for eight hours because he would have to lie down after one hour. (Id.) If he worked an entire day he could not work the next day. (Id.) During an eight-hour day, he would have to lie down, walk around, or lean on furniture. (Id.) Plaintiff drove a van to the doctor and his daughter's home. (Id.) Plaintiff drove no further than 10 miles at a time and he always took his wheelchair or cane with him and had a handicapped driving sticker. (Id.)
Plaintiff claims that he only saw Dr. Duritsch, the consultative examiner, for fifteen minutes. (Id.) Dr. Duritsch did not weigh him, even though his weight was listed in the report. (Id.) Plaintiff did not even take any steps during the exam. (Id.)
Malcolm Brahms, M.D., an orthopedic surgeon, testified as a medical expert about Plaintiff's physical impairments. (Tr. 841, 848). He summarized Plaintiff's medical records that showed the degenerative changes in the Plaintiff's spine were mostly without significant nerve involvement. (Tr. 843-845). Dr. Brahms found that there was "was no muscular skeletal evidence to support the need for a wheelchair," and that Plaintiff could perform medium level works with restrictions on "any overhead or above shoulder level repetitive work duties." (Tr. 845). He clarified that Plaintiff had arthritic changes and some abnormalities in his back that could "cause pain, but not the need of a wheelchair on that basis." (Tr. 847). Dr. Brahms observed that Plaintiff's "x-rays showed degenerative changes consistent with his age group but no evidence of any nerve root involvement." (Tr. 849). Dr. Brahms also testified that he did not rely on any of the opinions of other doctors in the case record, but focused on formulating an opinion based on the objective evidence of record. (Tr. 848).
Georgia Ann Pitcher, Ph.D., a psychologist, testified as a medical expert relating to Plaintiff's mental impairments. (Tr. 851). Like Dr. Brahms, Dr. Pitcher notes that she examined the relevant exhibits pertaining to Plaintiff's impairments, but she did not focus on the medical opinion evidence from other doctors. (Tr. 851-852). Rather, she formed her opinions based on an examination of the objective and clinical evidence. (Tr. 851-852). Dr. Pitcher noted that Plaintiff's mental impairments consisted of "reactive depression due to the pain and due to the loss of functioning due to his physical impairment . . . in all of the treatment records, pain is given a prominent role in the adjustment because that is the patient's complaint." (Tr. 853). Dr. Pitcher concluded that "his limitations are primarily due to his physical impairments and that he is capable of simple and repetitive tasks." (Id.) Due to his frustration and irritability, Dr. Pitcher opined that Plaintiff should also be restricted to only occasional contact with others. (Tr. 854).
B.
First, Plaintiff argues that the opinion of the medical expert, Dr. Malcolm A. Brahms, was inconsistent with the previous medical expert's opinion on a variety of issues and should not have been used to essentially disqualify the treating physician's opinions.
Regardless of its source, every medical opinion is evaluated by the ALJ. 20 C.F.R. 404.1527(c). The treating physician's opinion will be given controlling weight if it is supported by medically acceptable clinical and laboratory diagnostics techniques and is not inconsistent with the other substantial evidence in the case record. 20 C.F.R. 404.1527(c)(2). When deciding if a physician's opinion is consistent with the record, the ALJ may consider evidence such as the claimant's credibility, whether or not the findings are supported by objective medical evidence, as well as the opinions of every other physician of record. Coldiron v. Comm'r of Soc. Sec., 391 Fed. Appx. 435 (6th Cir. 2010).
The opinion of Dr. Murray, the treating physician, is not consistent with the substantial record evidence. Dr. Murray's opinion is inconsistent with almost every other physician on record who testified based on objective evidence and therefore cannot be given controlling weight. See C.F.R. 404.1527(c)(2).
If the opinion of a treating source is not accorded controlling weight, an ALJ must apply certain factors--namely, the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and the specialization of the treating source--in determining what weight to give the opinion. C.F.R. 404.1527(C)(2)(ii)(3)(4)(5).
Plaintiff essentially asks the Court to reject Dr. Brahms' opinion and reverse the ALJ's decision because Dr. Brahms' opinion is inconsistent with the findings of the experts in the first hearing. After careful review of the record, this Court finds that the conclusions of the overwhelming majority of medical experts (in both the first and second hearings) are essentially the same, and all support the ALJ's decision regarding Plaintiff's RFC.
Specifically, Plaintiff complains that Dr. Brahms' 2009 testimony differed from Dr. Hutson's 2006 testimony. However, by the time Dr. Brahms testified, Plaintiff had submitted over 200 pages of additional evidence and three years had passed. (Tr. 583-803). The fact that the ALJ accepted the 2009 testimony over the 2006 testimony is based on the fact that Dr. Brahms had a complete understanding of the Plaintiff's medical history. Regardless, like Dr. Brahms, Dr. Hutson similarly found Plaintiff was not disabled and could perform light work. (Tr. 410).
Plaintiff also faults Dr. Brahms' testimony because "he placed no weight whatsoever on the opinion of Dr. Duritsch." Dr. Duritsch recognized Plaintiff's neck pain, low back pain, Thoracic pain, history of right carpel tunnel syndrome, and bilateral knee crepitation. (Tr. 535). However, Dr. Duritsch opined that Plaintiff could occasionally lift /carry 25 pounds; frequently lift/carry 10 pounds; stand walk about 6 hours in an 8 hour workday; and occasionally climb, balance, kneel, crouch, crawl, or stoop. (Id.) Furthermore, Dr. Duritsch noted that Plaintiff had no limit on his ability to sit. He also noted that Plaintiff was able to independently transfer from the wheelchair to the stool and stand easily. (Tr. 536). Dr. Duritsch's opinions limited Plaintiff to a limited range of light work. (Tr. 535). While Dr. Brahms placed no weight on the medical opinions of any doctors in the record, he did examine the objective evidence as required. Ultimately, neither doctor found the Plaintiff disabled.
The Court finds this objection to be particularly troublesome given the fact that Plaintiff previously objected to the inclusion of Dr. Duritsch's April 2006 consultative examination as "factually erroneous." (Tr. 13, 375, 392).
Dr. Hutson agreed with Dr. Duritsch's opinions and opined that Plaintiff was cable of performing light work. Dr. Duritsch and Dr. Hutson's testimony is supported by evidence submitted by Dr. West, who noted that he did not see any surgical defect in the Plaintiff's lower back. (Tr. 535). Dr. Hutson and Duritsch's opinions are also supported by evidence submitted by Dr. Kraus, who stated that Plaintiff had several levels of mild disc bulges that did not cause significant nerve root impingement. Dr. Kraus also found evidence of carpal tunnel syndrome on the right side, but strength in the upper and lower extremities was grossly intact. (Tr. 511). Furthermore, Dr. Demirijian noted that the claimant's normal strength and neurological functions, gait, and station. (Id.) Finally, Dr. Brahms concluded after review of MRI', EMG's, and the claimant's medical record, the claimant was capable of doing a medium range of work. (Tr. 845).
Not only does this court find Dr. Brahms' opinion to be more consistent with the record evidence, these consistencies support the ALJ's decision to weigh Dr. Brahms' opinion more heavily than the opinion of the treating physician, Dr. Murray. 20 C.F.R. § 404.1527 ("Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion."). ALJ Knapp explained that "Dr. Brahms, the medical expert, is given great weight as he is most familiar with the longitudinal record, and had the opportunity to listen to the claimant testify under cross examination." (Tr. 515). Furthermore the ALJ also explained that he gave Dr. Brahms' opinion added weight because he was a specialist. (Id.)
20 C.F.R. §404.1527(d)(5)("Specialization. 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.").
Next, Plaintiff argues that his cross examination of Dr. Brahms was improperly limited. The record indicates that the ALJ interrupted the cross-examination because Plaintiff's counsel was engaging in "argumentative" questioning. (Tr. 849). Plaintiff's counsel claims that he "was attempting to impeach the witness by comparing his inconsistent testimony with the original medical expert." (Tr. 433). However, as the ALJ explained, questions regarding the validity of the medical opinions are issues for the ALJ, not Dr. Brahms. (Tr. 846-850). Plaintiff's attempt to extract inconsistencies between Dr. Brahms' testimony and that of previous expert's testimony is not significant. The ALJ had access to the record in order to review any inconsistencies. Furthermore, regardless of Plaintiff's ability to point out inconsistencies between the two experts opinions, the record evidence supports the ALJ's decision regarding the weight attributed to Dr. Brahms' opinion. Plaintiff offers no evidence that he was precluded from cross-examination.
It is the job of the ALJ not a medical expert, to determine how much weight to accord to each medical opinion. 20 C.F.R. §404.1520(b). A medical expert is merely expected to summarize relevant medical evidence and offer an opinion about work restrictions based on the evidence. HALLEX § I-2-5-32.
An ALJ may take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination; and may impose such time limitations on arguments as the presiding officer determines appropriate, having regard for the volume of the evidence and the importance and complexity of the issues involved. 10 C.F.R. § 2.333. There is no evidence that suggests that the ALJ abused his discretion.
C.
Next, Plaintiff argues that the ALJ erred in adopting the medical opinion of Dr. Pitcher.
Plaintiff argues that Dr. Pitcher's opinion was inadequate, because in preparation she claimed to have only "leafed through some of the medical opinions." Dr. Pitcher testified at the hearing to help the ALJ determine the Plaintiff's mental capabilities. Dr. Pitcher stated that she reviewed the exhibits on file regarding mental impairments, but that she only leafed through the medical opinions and would not testify about them. (Tr. 852). Dr. Pitcher made it clear that she was only qualified to offer an opinion regarding the claimant's mental state. (Id.) Dr. Pitcher had no duty to examine the opinions of the medical experts regarding the claimant's physical state, because she is not qualified to offer an opinion of the claimant's physical state. Moreover, a medical expert's job is to examine the clinical and objective evidence and opine on functional limitations based on their review of the record. A medical expert is not required to fashion any opinion about the functional limitations recommended by other doctors.
Arguments made in a perfunctory manner, without any effort to explain the basis for such or any supporting proof can be deemed waived. See Kennedy v. Comm'r of Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003). Here, Plaintiff makes no effort to explain why Dr. Pitchers' testimony should be deemed inadequate by this Court. In Kennedy the plaintiff simply stated that she believed that her surgeries met Listing 1.13 of Appendix 1. Kennedy refused to brief the issue, but requested that the argument be considered by the court.
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In giving weight to Dr. Pitcher's decision the ALJ found that Dr. Pitcher's opinion was based upon a "thorough and accurate assessment of the record and her testimony held up well on cross-examination." The ALJ noted that Dr. Pitcher's recommended limitations were consistent with Plaintiff's therapy progress note and to the "mild and moderate degree of impairment described by Dr. Boerger and generally with the conclusions of the two BDD reviewing psychologist." (Tr. 516). Despite Dr. Pitcher's statement that "she leafed through some of the medical opinions," the record evidence supports Dr. Pitcher's opinion.
This Court is not burdened with re-weighing the evidence; this Court is tasked with examining the record to see if the ALJ's decision is supported by substantial evidence. Raisor v. Schweiker, 540 F.Supp. 686 (S.D. Ohio 1982). The testimony of both Dr. Brahms and Dr. Pitcher regarding Plaintiff's limitations provided substantial evidence to support the ALJ's RFC finding. Hale v. Sec'y of Health & Human Servs., 816 F.2d 1078, 1083 (6th Cir. 1987) ( a medical expert's "testimony, based on the evidence of record represents substantial evidence to support the Secretary's decision"). The ALJ properly relied on the medical expert's expertise and longitudinal view of the record to give an accurate summary of the evidence. Accordingly the ALJ did not err in relying on the medical expert's recommendations to help formulate Plaintiff's RFC. Blankenship v. Asture, No. 09-979 (S.D. Ohio Jan. 27, 2011) (the ALJ "may rely on [medical expert's] testimony in order to resolve conflicts between medical opinions" ). Accordingly, the ALJ properly found that Plaintiff was not disabled. Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) ("Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached.").
III.
For the foregoing reasons, Plaintiff's assignments of errors are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the commissioner, that William C. Dean was not entitled to disability insurance benefits, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly, whereupon, as no further matters remain pending for the Court's review, this case shall be CLOSED.
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Timothy S. Black
United States District Judge