Opinion
Case No. CIV-19-138-F
12-09-2019
RUSSELL MCLEOD, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Russell McLeod (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Stephen P. Friot has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). Doc. 17.
Plaintiff maintains the ALJ improperly weighed two physicians' opinions. After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the court affirm the Commissioner's decision. See 42 U.S.C. § 405(g).
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the Administrative Record will refer to its original pagination.
I. Administrative determination.
A. Disability standard.
The Social Security Act defines "disability" as the "inability to engage in 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." 42 U.S.C. § 423(d)(1)(A). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff "bears the burden of establishing a disability" and of "ma [king] a prima facie showing that he can no longer engage in his prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 30-42; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since the alleged onset date;AR 33-42.
(2) had the severe impairments of gout, Grave's disease, degenerative disc disease, hypertension, ischemic heart disease, cervical disc disease, thyroid gland disorder, and neoplasma of eye;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the residual functional capacity (RFC) for light work with an additional restriction;
(5) was unable to perform any past relevant work, could perform jobs that exist in significant numbers in the national economy prior to March 1, 2016, such as riveting machine operator II, glass checker optical goods, and assembler small products II, but could not perform any such jobs on or after March 1, 2016; and thus
(6) was not disabled prior to March 1, 2016, but was disabled on and after that date.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. § 404.1545(a)(1).
2. Appeals Council's findings.
The SSA's Appeals Council granted Plaintiff's request for review, id. at 18, and issued a decision on December 10, 2018. Id. at 12-16. The Appeals Council's decision is the Commissioner's final decision. See Sims v. Apfel, 530 U.S. 103, 106, (2000) ("[T]he [Social Security] Act does not define 'final decision,' instead leaving it to the SSA to give meaning to that term through regulations. SSA regulations provide that, if the Appeals Council grants review of a claim, then the decision that the Council issues is the Commissioner's final decision." (internal citations omitted)); Shivel v. Astrue, 260 F. App'x 88, 90 (10th Cir. 2008) ("[T]he ALJ's unfavorable decision is the Commissioner's final decision . . . .").
The Appeals Council did not adopt the ALJ's finding that Plaintiff became disabled on March 1, 2016—instead finding that he became disabled on March 31, 2016. AR 12. But, "for the period from March 14, 2014 through March 30, 2016, the Appeals Council agree[ed] with and adopt[ed] the findings of the [ALJ] through the first four steps of the sequential evaluation process." Id. at 13. The Appeals Council also adopted the ALJ's statements regarding the issues and evidentiary facts, "as applicable." Id. at 12. Because the Appeals Council adopted the ALJ's statements and findings as to steps one through four, the evidentiary facts and findings of the ALJ are "part of the 'final decision of the Commissioner.'" Berg v. Astrue, 2012 WL 1252678, at *6 (D. Kan. Apr. 13, 2012).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) ("It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.") (internal quotation marks and citation omitted). A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citation omitted). The court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. Issues for judicial review.
Plaintiff asserts the ALJ improperly evaluated opinions from two physicians—Dr. Treasure Wehner, D.O., and Dr. David Hufford, M.D. Doc. 20, at 4-11.
III. Analysis.
A. Dr. Hufford's opinion.
Dr. Hufford was an examining physician performing an independent medical examination. AR 621. In a June 10, 2014 letter, he assessed "temporary restrictions," including no lifting greater than ten pounds with either arm, no lifting greater than twenty pounds with both arms, no overhead use with the arms, and the avoidance of all awkward positions of the neck, including prolonged downward gaze. Id. at 622. The ALJ considered the opinion and found:
Plaintiff includes his discussion of Dr. Hufford's opinion in a section entitled "The ALJ Improperly Discounted the Opinions of Mr. McLeod's Treating Physicians." Doc. 20, at 4. Dr. Hufford, however, specifically notes that he performed an "independent medical examination" and that "no physician-plaintiff relationship has been established." AR 621. Thus, Dr. Hufford is an examining source.
Plaintiff misstates Dr. Hufford's asserted limitations in his brief. Plaintiff writes: "yet Dr. Hufford opined that [Plaintiff] could lift no greater 'than 10 pounds, and no overhead use with the arms, and avoidance of all awkward positions of the neck.'" Doc. 20, at 9 (citing AR 40). The quoted material omitted—without the use of ellipses—the portion of the sentence noting "no greater than a 20 pound two-hand lift." AR 40.
This opinion was issued over three years ago and again appeared to refer to only a short period of time. While this opinion is somewhat consistent with the record, there is no support for Dr. Hufford's arm use limitations. In fact, after this opinion was issued, [Plaintiff] was noted to have full strength in his upper extremities and normal sensory findings. His neck pain improved with treatment.Id. at 40.
The opinions of examining consultants generally receive less weight than a treating physician's opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Even so, an ALJ must properly consider their opinions and provide legitimate reasons for discounting them. See 20 C.F.R. §§ 404.1527(c), 416.927(c). The ALJ should consider: "(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion." See Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011). That said, so long as the ALJ provides a well-reasoned discussion, the failure to "explicitly discuss" all the factors "does not prevent [the] court from according [the ALJ's] decision meaningful review." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Plaintiff argues that the ALJ's reasoning for discounting Dr. Hufford's opinion is not supported by substantial evidence. Doc. 20, at 8-11. In doing so, he asserts the ALJ did not provide legitimate reasons to discount Dr. Hufford's opinion.
The ALJ found there was no support for Dr. Hufford's limitations related to Plaintiff's arm use. AR 40. The ALJ relied on evidence that Plaintiff had full strength in his upper extremities and normal sensory findings after Dr. Hufford issued his opinion. Id. Plaintiff asserts the finding regarding arm-use limitations shows "the ALJ does not understand the relationship between the cervical spine and a person's use of their arms." Doc. 20, at 10. Plaintiff speculates it was possible that he could have normal arm strength while still feeling pain when moving his arms. See id. at 11. Plaintiff contends his "cervical spine impairment directly affects his ability to use his arms," but he cites no portion of the medical record in support of his argument. Id. The ALJ found the medical record did not support Dr. Hufford's arm-use limitations and cited evidence in support of his finding. See AR 40. The court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold, 718 F.3d at 1262 (citation omitted).
Plaintiff also challenges the ALJ's finding that the opinion "was issued over three years ago and again appeared to refer to only a short period of time." Doc. 20, at 9-10; AR 40. Plaintiff concedes that Dr. Hufford considered the restrictions to be "temporary." Doc. 20, at 10; AR 622. But Plaintiff contends that Dr. Hufford never removed the restrictions and Plaintiff's condition did not improve. Doc. 20, at 10. Dr. Hufford was not Plaintiff's treating doctor and did not have a physician-patient relationship with Plaintiff. AR 621. As such, it is unreasonable to interpret Dr. Hufford to mean that his restrictions were temporary until he removed them personally. Plaintiff notes that it was nearly three years between Dr. Hufford's opinion and his cervical-spine surgery, arguing it took years for him to improve. Doc. 20, at 10. But the ALJ did not assert Plaintiff improved quickly. Instead, he relied on specific, contemporaneous evidence by noting Plaintiff's full arm strength and improvement with neck pain. See AR 40. Earlier in the decision, the ALJ summarized Dr. Hufford's examination and a September 2014 appointment with Dr. Shon Cook, M.D., further supporting his findings. Id. at 37 (citing id. at 610-11, 621-22).
Finally, Plaintiff is correct that Dr. Hufford's opinion, which he issued over three years before the ALJ's decision, was still within the alleged period of disability. "But even if this reason was improper, the other reasons the ALJ gave were more than sufficient for rejecting [Dr. Hufford's] opinion." Bainbridge v. Colvin, 618 F. App'x 384, 390 (10th Cir. 2015).
B. Dr. Wehner's opinion.
Plaintiff asserts the ALJ improperly weighed the opinion of Plaintiff's treating physician, Dr. Wehner. Doc. 20, at 4-8. On April 8, 2014, Dr. Wehner wrote a letter stating:
[Plaintiff] was examined in the office on 3-10-14 and MRI on cervical spine was done on 3-12-14. The MRI shows an abnormality that will require further treatment by a
neurosurgeon. The patient is unable to work since the MRI and will need to be released to work by the neurosurgeon.AR 499. The ALJ considered the contents of the letter, finding:
This opinion is limited in scope as it only refers to a short time period after [Plaintiff] was diagnosed with cervical degenerative disc disease. Medical appointments after this opinion was issued indicate that the claimant would be able to return to light work.Id. at 40.
Ordinarily, medical opinions from treating physicians receive more weight than non-treating sources. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) ("Generally, we give more weight to medical opinions from your treating sources . . . ."). But when a physician opines on a claimant's ability to work—as Dr. Wehner did here—the opinion is on an issue "reserved to the Commissioner" and "even when offered by a treating source, [is] never . . . given special significance." Duncan v. Colvin, 608 F. App'x 566, 573 (10th Cir. 2015); see also Cowan v. Astrue, 552 F.3d 1182, 1188-89 (10th Cir. 2008) (holding that a "statement on the medical form was not a true medical opinion" where the doctor stated "I feel he may never return to work").
Plaintiff concedes that Dr. Wehner's opinion was on an issue reserved to the Commissioner. Doc. 20, at 5. But, Plaintiff argues that the ALJ still must properly consider the opinion. Id. at 5-6. Plaintiff argues that some records cited by the ALJ were from 2017—three years after Dr. Wehner's restriction and outside of the time period challenged by Plaintiff. Id. But, the ALJ also cites evidence closer in time to Dr. Wehner's opinion, including Dr. Hufford's opinion that Plaintiff could lift twenty pounds, meaning Plaintiff had the ability to perform light work. AR 40 (citing id. 602-59, which includes Dr. Hufford's opinion).
Plaintiff incorrectly states that Dr. Hufford's opinion "was inconsistent with the ALJ's finding of light work." Doc. 20, at 7. But, as noted above, being able to lift twenty pounds is consistent with light work. See 20 C.F.R. §§ 404.1567(b), 416.967(b) ("Light work involves lifting no more than 20 pounds at a time . . . ."). That Plaintiff could lift only ten pounds with each arm separately does not dictate a different result. See Lacey v. Comm'r of Soc. Sec., 2018 WL 2181097, at *5 (E.D. Mich. Feb. 15, 2018) ("Dr. Plomaritis limited plaintiff to lifting 5 pounds with the right arm and 20 pounds with both arms. That plaintiff can lift 20 pounds is consistent with an RFC that limits lifting to 20 pounds, occasionally, and the regulation does not provide otherwise."), adopted, 2018 WL 1180891 (E.D. Mich. Mar. 7, 2018).
Plaintiff also asserts that it was wrong for the ALJ to determine that the opinion only referred to a short time period because it was "pure assumption and conjecture made by the ALJ" and not supported by substantial evidence. Doc. 20, at 4. Plaintiff argues the medical evidence "does not indicate that a neurosurgeon ever released [Plaintiff] to work prior to his fusion in May of 2017." Id. at 5. By its terms, Dr. Wehner's finding that Plaintiff could not work is of indeterminate length because its end date depended on Plaintiff's then-treating neurosurgeon releasing him to work. AR 499. Complicating matters, it does not appear from the medical record that Plaintiff returned to the neurosurgeon (Dr. Nazih Moufarrij, M.D.) after Dr. Wehner found he could not work. Id. at 451-59 (containing Dr. Moufarrij's records). That said, even if the ALJ improperly relied on the "short time period" of Dr. Wehner's letter, the ALJ provided other good reasons for rejecting her findings, so any error is not reversible. See Bainbridge, 618 F. App'x at 390.
IV. Recommendation and notice of right to object.
For these reasons, the undersigned recommends the court affirm the Commissioner's decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by the 30th day of December, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
ENTERED this 9th day of December, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE