Opinion
CIVIL ACTION NO. 18-2480
02-27-2020
JOSEPH CLARENCE ENDY, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION MARILYN HEFFLEY, U.S.M.J.
Joseph Clarence Endy ("Endy" or "Plaintiff") seeks review, pursuant to 42 U.S.C. § 405(g), of the Commissioner of Social Security's ("Commissioner") decision denying his claim for Supplemental Security Income ("SSI"). As set forth below, I recommend that Endy's Request for Review be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Endy was born on March 15, 1964. R. at 152. He has a high-school education, id. at 167, and is able to communicate in English, id. at 164. His past relevant work was as a fly-fishing guide/instructor and as manager of a fly-fishing store. Id. at 167-68. Endy filed an application for SSI pursuant to Title XVI of the Social Security Act on October 3, 2014. Id. at 14. He alleged disability beginning on March 1, 2014 due to degenerative disc disease, spinal stenosis and pinched nerves. Id. at 166. His application was initially denied on January 6, 2015. Id. at 69-76. Endy then filed a written request for a hearing on February 11, 2015. Id. at 82. A hearing before an Administrative Law Judge ("ALJ") was held on November 4, 2016. Id. at 27-68. On June 2, 2017, the ALJ issued an opinion determining that Endy was not disabled. Id. at 11-26. Endy filed a timely appeal with the Appeals Council on August 1, 2017. Id. at 135-37. On April 19, 2018, the Appeals Council denied Endy's request for review, thereby affirming the decision of the ALJ as the final decision of the Commissioner. Id. at 1-8. Endy then commenced this action in federal court.
Citations to the administrative record will be indicated by "R." followed by the page number.
Endy's Disability Report—Adult states an alleged onset date of March 1, 2014. R. at 166. However, the record also contains a Disability Report—Field Office, which was completed by Social Security Administration personnel during a telephone call with Endy, stating his alleged onset date as May 3, 2014. Id. at 152. This discrepancy is not relevant to the outcome of this case.
II. THE ALJ'S DECISION
In her decision, the ALJ found that Endy suffered a severe impairment from cervical myelopathy status post discectomy and fusion. Id. at 16. The ALJ determined that Endy's impairment did not meet or medically equal a listed impairment. Id. at 18. The ALJ found that Endy had the residual functional capacity ("RFC") to perform:
Light work as defined in 20 CFR 416.97(b) except he requires the ability to shift positions from sitting to standing at will; no climbing ladders, ropes or scaffolds; occasional climbing ramps and stairs and stooping; no kneeling, crouching, crawling or balancing on uneven or moving surfaces; no overhead reaching but can occasionally reach in other directions, handle and finger; no exposure to extreme cold or hazards such as unprotected heights or dangerous machinery.Id. Relying on the testimony of the vocational expert who appeared at the hearing, the ALJ determined that Endy was capable of performing the following occupations: school bus monitor, bakery products inspector and laminating machine off bearer. Id. at 21. Accordingly, the ALJ found that Endy was not disabled and denied his claim. Id. at 22.
III. ENDY'S REQUEST FOR REVIEW
In his Request for Review, asserts that the ALJ erred in failing to give greater weight to the opinion of his treating neurosurgeon, Dr. James Harrop, in determining his RFC.
IV. DISCUSSION
A. Endy's Argument that the ALJ Failed to Give Proper Weight to the Opinion of His Treating Neurosurgeon Is Meritless
Endy contends that the opinion of his treating neurosurgeon, Dr. James Harrop, was entitled to be afforded controlling, or at least significant weight because of Dr. Harrop's status as his treating physician. Pl.'s Br. (Doc. No. 16) at 4-5. That contention fails for three reasons. First, the treatment notes upon which Endy seeks to rely do not constitute an opinion for Social Security purposes. The Social Security Act defines medical opinions as "statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [his or her] symptoms, diagnosis and prognosis, what [he or she] can still do despite impairment(s), and [his or her] physical or mental restrictions." 20 U.S.C. § 404.1527(a)(1); Reed v. Berryhill, 337 F. Supp. 3d 525, 527-28 (E.D. Pa. 2018). Endy purports to rely on statements taken from an August 18, 2015 letter written to Dr. Harrop and to Endy's primary care physician from a neurology resident at Thomas Jefferson University Hospital, which is also signed by an associate professor from that hospital. Pl.'s Br. at 4 (citing R. at 336-38). Endy points to statements in that letter regarding his complaints of increased stiffness and problems with balance, gripping and carrying, limb cramping, sensory sensitivity and weakness as well as those authors' diagnosis of cervical myelopathy with severe sensory changes, gait dysfunction, spasms and paresthesias. Id. That letter, however, fails to satisfy the Social Security standard for a medical opinion. The letter recites Endy's subjective statements about his condition. See R. at 336. The only medical opinion it contains is a diagnosis and the authors' determination that Endy's condition on examination was "consistent with" a diagnosis of cervical myelopathy, but that additional testing should be performed to rule out other potential etiologies. See id. at 337-38. It contains no judgment regarding what degree of functional limitation Endy's impairment would impose on him or what activities he could still perform despite the impairment. Thus, the letter does not support Endy's argument that the resident and associate professor provided a medical opinion let alone that their statements were entitled to the deference accorded the opinions of treating physicians.
Endy also cites generally to Dr. Harrop's treatment notes as though they were a medical opinion. See Pl.'s Br. at 4 (citing R. at 407-30). That citation fails to support his "treating physician" argument for some of the same reasons as does his citation to the resident and associate professor letter that are discussed infra. The treatment notes do not constitute a medical opinion for Social Security purposes and the citations to them are largely to Dr. Harrop's recording of Endy's subjective description of the extent of his symptoms.
Second, the letter is not from Dr. Harrop but, instead is written to Dr. Harrop by the resident and associate professor. Id. Endy has failed to demonstrate that either of those authors had sufficient experience with him to qualify as treating physicians for Social Security purposes. See Morris v. Barnhart, 78 F. App'x 820, 823 (3d Cir. 2003) (doctor who saw claimant on only three or four occasions over two or three months did not qualify for the status of treating physician); Galbreath v. Coleman, No. 3:13-CV-2157, 2014 WL 4923233, at *12 (M.D. Pa. Sept. 30, 2014) (doctor who saw claimant four times over several months did not qualify as a treating physician). Dr. Harrop, himself, provided no opinion of his own regarding Endy's functional capabilities but only his treatment records. See R. at 247-66, 407-30.
Third, the statements to which Endy cites, with the exception of his diagnosis, state that they are recording Endy's own subjective descriptions of his condition. See, e.g., id. at 336 ("[Endy] reports that he has had balance issues, limb cramping, sensory sensitivity and weakness . . . ."); id. (Endy "describes the sensory changes as his entire body from the neck down"). "[A] medical source does not transform [a] claimant's subjective complaints into objective findings simply by recording them . . . ." Hatton v. Comm'r of Soc. Sec., 131 F. App'x 877, 879 (3d Cir. 2005); Morris, 78 F. App'x at 824-25 ("[T]he mere memorialization of a claimant's subjective statements in a medical report does not elevate those statements to a medical opinion."). Moreover, a diagnosis alone does not provide an opinion regarding the extent of the functional limitations that the diagnosed impairment causes. See Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990) (citing Purter v. Heckler, 771 F.2d 682, 698 (3d Cir. 1985)); see also Lane v. Comm'r of Soc. Sec., 100 F. App'x 90, 95 (3d Cir. 2004) (finding that in the absence of evidence of "work-related functional limitations," claimant could not establish disability under the Social Security Act). "A diagnosis of impairment, by itself, does not establish entitlement to benefits under the [Social Security] Act. Rather, a claimant must show that the impairment resulted in disabling limitations." Phillips v. Barnhart, 91 F. App'x 775, 780 (3d Cir. 2004). Thus, the treatment records that Endy cites do not support his "treating physician" argument.
B. The ALJ's RFC Determination Was Supported by Substantial Evidence
On October 10, 2014, Endy underwent an anterior cervical discectomy at C3-C6 with a translational plate and allograft. R. at 264. His preoperative diagnosis reflected "cervical myelopathy, C3-C4 and C5-C6 cord compression, cervical myelomalacia and progressive neurological deterioration." Id. Endy's surgery was performed by his neurosurgeon, Dr. Harrop, at Thomas Jefferson University Hospital. Id. After his next examination on November 18, 2014, Dr. Harrop sent a letter to Endy's primary care physician, Dr. Bryan Romero, reporting on Endy's post-surgery condition. Id. at 276. He reported that Endy was experiencing some difficulty with his swallowing, which he said was slowly and progressively improving. Id. Dr. Harrop stated that x-rays revealed that the graft and "hardware" that he had inserted during the fusion operation were in "good position with non-significant prevertebral swelling." Id. He also opined that Endy's tandem gait and his hand strength were significantly improved on examination. Id.
At his next examination by Dr. Harrop on March 17, 2015, Endy reported that he was experiencing worsening pain and tingling in his hands and feet. Id. at 409. Dr. Harrop found, however, that Endy's examination was "essentially unchanged." Id. After that examination, Dr. Harrop reported to Dr. Romero that he intended to have Endy undergo another MRI "to assure that we are not missing anything in terms of his cord compression" and that if the MRI showed Endy's spinal cord to be well decompressed, he would recommend further evaluation by the neurology department. Id.
Endy next saw Dr. Harrop on July 14, 2015. Id. at 410. After that examination, Dr. Harrop reported to Dr. Romero that Endy had stated that he had "never made a significant improvement" in his condition. Id. On examination, however, Dr. Harrop found that Endy had 5/5 motor strength, although he did "have difficulty with his tandem gait." Id. Dr. Harrop reviewed the results of the follow-up MRI that he had ordered and reported that it showed "excellent decompression at C3-C4, C4-C5, and C5-C6." Id. The MRI also revealed, however, that Endy appeared to have a small disc herniation at C6-C7. Id. Dr. Harrop discussed with Endy the possibility of performing decompression of his spine at that level, but Endy declined to proceed with another operation. Id. Dr. Harrop referred him to the Neurology Department "to see if there may be another etiology for his dysfunction." Id.
Dr. Harrop next examined Endy on August 18, 2015. Id. at 412. In a letter to Dr. Romero, Dr. Harrop described Endy's examination as being "overall . . . similar to his previous evaluation except he feels that he has increasing stiffness," but he also stated that the examination was "unchanged" in his own view. Id. Dr. Harrop had again suggested surgery for Endy's remaining issues at C6-C7, however, Endy had declined the operation in favor of monitoring. Id. Dr. Harrop recommended that Endy consult a physiatrist and stated that he intended to "obtain flexion and extension films and [an] MRI of his brain." Id. There is no evidence that Endy complied with the recommended treatment or that he saw Dr. Harrop, or any neurologist, again after the August 18, 2015 appointment.
The other physical examinations in the record were performed by Endy's primary care physician, Dr. Romero. Endy continued after his operation to report to Dr. Romero symptoms of weakness and numbness and problems with coordination, see, e.g., id. at 323-25. Dr. Romero's April 25, 2016 examination was "positive for weakness and numbness" and reflected that Endy had difficulty with coordination as well as cold sensitivity but that he had no athralgias. Id. at 323.
Dr. Romero's June 17, 2016 physical examination of Endy revealed that he had normal reflexes and normal coordination. Id. at 326. The same examination showed that Endy had a normal range of motion, including in his neck, although he exhibited "tenderness" in his cervical and low back region. Id. He had no arthralgias, joint swelling or edema, id., and was in no distress, id. at 325. Dr. Romero reported Endy's coordination as being "normal." Id. at 326.
On July 26, 2016, Dr. Romero again found Endy to be in no distress. Id. at 328. Endy's neck was "supple," and he had a normal range of motion. Id. at 329. An x-ray of Endy's lumbar spine revealed only "mild degenerative changes." Id. at 330. The records for this visit are the latest treatment notes of record.
On February 13, 2017, a consultative examiner, Dr. Ziba Monfared, examined Endy. Id. at 431-43. Endy complained to Dr. Monfared that he had weakness and numbness in both arms that radiated to his fingers. Id. at 431. He also reported weakness in his legs. Id. He rated his pain as seven out of 10 with aggravations to as high as nine out of 10. Id.
Upon physical examination of Endy, however, Dr. Monfared noted that Endy's gait and station were normal. Id. at 432. He found that Endy was unable to walk on his heels and toes because it made him severely unbalanced and that Endy's tandem walk was abnormal due to his balance problems. Id. Endy was only able to perform 50 percent of a full squat due to back pain. Id. Dr. Monfared reported that Endy did not require an assistive device to walk, that he needed no assistance changing for the examination or getting on and off the exam table and that he was able to rise from a chair without difficulty. Id. Dr. Monfared noted that Endy's hand and finger dexterity were not intact, as he had difficulty with zipping, buttoning and tying. Id. Nevertheless, Dr. Monfared rated Endy's grip strength at four out of five, which the National Center for Biotechnology Information defines as having the ability to exert "muscle activations against some resistance" with a full range of motion. https://www.ncbi.nlm.nih.gov/books/NBK436008/.
Dr. Monfared's examination of Endy's cervical spine also revealed no cervical or paracervical pain or spasm. He found Endy's upper extremities had no evident joint deformity and no joint redness, swelling, heat or effusion. R. at 432. There was no evidence of muscle atrophy and he rated Endy's motor strength as four out of five in the proximal and distal muscles bilaterally. Id. Dr. Monfared determined that Endy had "some sensory diminished [sic] at the tip of Endy's finger bilaterally." Id. at 432-33. Endy's reflexes were physiologic and equal. Id. at 433.
In his examination of Endy's thoracic and lumbar spine, Dr. Monfared found no spinal or paraspinal tenderness and no tenderness in the SI joint or sciatic notch. Id. Endy showed no muscle spasm, scoliosis or kyphosis. Id. Single-lens reflex tests were negative both in the seated and supine positions. Id. Dr. Monfared also found no trigger points. Id. Endy's lower extremities exhibited no instability or tenderness, and his joints showed no deformity, instability, tenderness, redness, swelling, heat or effusion. Id. His motor strength was five out of five bilaterally in those extremities without any muscle atrophy. Id. Dr. Monfared also found no sensory abnormality and indicated that Endy's reflexes were physiologic and equal. Id. Dr. Monfared diagnosed Endy as having "[n]eck pain associated with radiculitis and numbness and weakness of [his] bilateral hands and upper extremities" and "lumbar pain without radiculitis." Id.
Based on his examination, Dr. Monfared opined that Endy could lift up to 10 pounds continuously, 11-20 pounds frequently and 21-50 pounds occasionally, but could never lift more than 50 pounds. Id. at 434. Dr. Monfared further opined that Endy could carry up to 10 pounds continuously and 11-20 pounds frequently, but could never carry 21 pounds or more. Id. In addition, he stated that, at one time without interruption, Endy could sit for eight hours, stand for four hours and walk for two hours. Id. at 435. In an eight-hour workday, Dr. Monfared determined that Endy could sit for a total of eight hours, stand for a total of seven hours and walk for a total of five hours. Id. Dr. Monfared indicated that Endy would be limited to no more than occasionally handling, fingering, feeling or pushing/pulling with either hand. Id. at 436. Endy similarly could not operate foot controls more than occasionally. Id. As to postural activities, Dr. Monfared limited Endy to: no more than frequently climbing stairs and ramps, stooping or kneeling; to no more than occasionally crouching or crawling; and to never climbing ladders or scaffolds or balancing. Id. at 437. Dr. Monfared further opined that Endy could frequently be exposed to moving mechanical parts or extreme cold or operate a motor vehicle, but could only occasionally be exposed to humidity and wetness or vibrations and could never be exposed to unprotected heights. Id. at 438. He answered affirmatively to questions asking whether Endy could: perform activities like shopping; travelling without a companion for assistance; ambulating without using a wheelchair or two canes or two crutches; using standard public transportation; climbing a few steps at a reasonable pace with the use of a single hand rail; preparing a simple meal and feeding himself; and caring for his own personal hygiene. Id. at 439 He answered negatively as to whether Endy could walk a block at a reasonable pace on rough or uneven surfaces or could sort, handle or use paper/files. Id.
The ALJ gave great weight to Dr. Monfared's opinion because she found it to be consistent with Endy's treatment records. Id. at 20. She noted that after Endy's discectomy and spinal fusion operation in October 2014, Endy "continued to complain of pain and difficulty with exertional and postural activities" but found that there was "little evidence to support limitations greater" than those that she had included in Endy's RFC. Id. at 19. She also noted that months after his surgery, Endy had updated diagnostic imaging performed based upon which his neurosurgeon had concluded that he had "posterior T2 signal . . . but no significant disc herniation or cord compression." Id. (citing id. at 412). She pointed out that, upon physical examination, Dr. Harrop found that Endy was hyperreflexic and had difficulty with his gait, but also that he retained five out of five motor strength. Id. at 19-20. The ALJ also noted that Endy appeared not to have followed through with an electromyography that Dr. Harrop had recommended, declined further recommended surgical treatment and ceased treating with his neurologist. Id. at 20. Endy's records of subsequent treatment with his primary care physician "largely involved management of chronic and short-term non-severe conditions." Id. The ALJ found that Endy's treatment records showed "some complaints of pain in the cervical region but that upon examination, [Endy] had normal range of motion, normal reflexes and normal coordination." Id. When examined by Dr. Monfared, Endy had some difficulty with postural maneuvers but appeared to be in no acute distress and had a normal gait. Id. Similarly, although Endy had difficulty with hand and finger dexterity, he had close to normal grip strength. Id. In light of those treatment records and Dr. Monfared's opinion, the ALJ limited Endy's RFC to provide for no more than light work with the ability to shift from seated to standing at will, and included postural limitations as well as limitations on hand manipulation and environmental exposures. Id. at 18, 20.
The ALJ's evaluation of the evidence in this case was reasonable and supported by substantial evidence. As discussed above, there is no evidence that Endy was receiving any treatment for his spinal condition after he stopped treating with his neurosurgeon after the August 18, 2015 examination. Both Dr. Monfared and the ALJ recognized that Endy's cervical condition imposed significant limitations on him, and accordingly, the ALJ included in his RFC limits on standing, walking, carrying, postural activities and environmental exposures, as well as the requirement for a sit/stand option. It is Endy's burden to show that the ALJ erred in not including greater limitations in his RFC.
In addition, although the ALJ did not cite to it, the evidence reflects that, at the time of his examination by Dr. Monfared, the only treatment Endy received was non-prescription medication. R. at 431. --------
In this case, the Court's scope of review is "limited to determining whether the Commissioner applied the correct legal standards and whether the record, as a whole, contains substantial evidence to support the Commissioner's findings of fact." Schwartz v. Halter, 134 F. Supp. 2d 640, 647 (E.D. Pa. 2001). It is the claimant's burden to "prove [his or] her medical condition and [the resulting] functional limitations." Esposito v. Apfel, No. 99-771, 2000 WL 218119, at *4 (E.D. Pa. Feb. 24, 2000) (citing Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Torres v. Schweiker, 682 F.2d 109, 111 (3d Cir. 1982)); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (claimant bears the burden of proof at steps one through four of the sequential analysis). In the absence of any contrary medical opinion, Endy has simply failed to carry that burden.
V. CONCLUSION
For the foregoing reasons, I make the following:
RECOMMENDATION
AND NOW, this 27th day of February, 2020, IT IS RESPECTFULLY RECOMMENDED that Plaintiff's Request for Review be DENIED. The parties may file objections to this Report and Recommendation within 14 days after receiving a copy thereof. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
/s/ Marilyn Heffley
MARILYN HEFFLEY
UNITED STATES MAGISTRATE JUDGE