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Tullier v. Berryhill

United States District Court, M.D. Louisiana

September 16, 2019

JESSE JOSEPH TULLIER
v.
NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY

          RULING

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Jesse Joseph Tullier (“Plaintiff”) brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his application for disability insurance benefits (“DIB”). Plaintiff has filed a Memorandum in Support of Appeal[1] and the Commissioner has filed an Opposition Memorandum.[2] In compliance with a June 20, 2019 Order, both parties filed supplemental briefing regarding the alleged onset date (“AOD”) of Plaintiff's alleged disability.[3]

         Based on the applicable standard of review under § 405(g) and the analysis which follows, the court AFFIRMS[4] the Commissioner's decision and DISMISSES Plaintiff's appeal.

         I. Procedural History

         Plaintiff filed an application for DIB benefits on July 28, 2015 alleging that he had become unable to work due to complications stemming from compression of his spinal cord and carpal tunnel syndrome.[5] Plaintiff's claim was initially denied on January 8, 2016[6] and Plaintiff thereafter requested a hearing before an administrative law judge (“ALJ”). A hearing was held on March 7, 2017 during which Plaintiff, represented by counsel, testified.[7]

         On June 5, 2017, the ALJ issued a notice of unfavorable decision.[8] Plaintiff requested review by the Appeals Council, [9] and on March 6, 2018, the Appeals Council denied Plaintiff's request for review.[10] On May 1, 2018, Plaintiff filed his Complaint.[11] Accordingly, Plaintiff exhausted his administrative remedies before timely filing this action for judicial review and the ALJ's decision is the Commissioner's final decision for purposes of judicial review.[12]

         II. Standard of Review

          Under 42 U.S.C. § 405(g), judicial review of a final decision of the Commissioner denying disability benefits is limited to two inquiries: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applies the proper legal standards.[13] If the Commissioner fails to apply the correct legal standards, or to provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal.[14]

         III. The ALJ's Decision

         A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity.[15] The regulations require the ALJ to apply a five-step sequential evaluation to each claim for benefits.[16] In the five-step sequence used to evaluate claims the Commissioner must determine whether: (1) the claimant is currently engaged in substantial gainful activity; (2) the claimant has a severe medically determinable impairment(s); (3) the impairment(s) meets or equals the severity of a listed impairment in Appendix 1 of the regulations; (4) the impairment(s) prevents the claimant from performing past relevant work; and, (5) the impairment(s) prevents the claimant from doing any other work.[17]

         The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability.[18] If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity (“RFC”), age, education and past work experience, that the claimant is capable of performing other work.[19] If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work.[20]

         The ALJ determined that Plaintiff had “not engaged in substantial gainful activity since October 1, 2013, the alleged onset date”[21] and that Plaintiff had severe impairments of “status-post anterior cervical discectomy and fusion of C5-C7; status-post carpal tunnel release surgery on the left hand with residuals; degenerative disc disease of the lumbar spine; and obesity.”[22] The ALJ further found that Plaintiff had the RFC to

perform light work as defined in 20 CFR 404.1567(b) except that he cannot climb ladders, ropes, or scaffolds and cannot perform overhead reaching. The claimant can occasionally stoop, kneel, crouch, and crawl. He cannot work on vibrating surfaces. Finally, he can occasionally use his left, non-dominant hand for gross manipulation or handling.[23]

         Utilizing this RFC, the ALJ found that Plaintiff was unable to perform his past work, but that Plaintiff could perform other work, including the representative occupations of advertising material distributor, cafeteria attendant, and parking lot attendant, such that Plaintiff was not disabled from October 1, 2013 through June 5, 2017 (the date of the ALJ's decision).

         IV. Plaintiff's Allegations of Error

          Plaintiff's briefing on appeal focuses on the ALJ's treatment of medical opinion evidence from Plaintiff's treating physicians, Drs. Burdine and Callerame, and the limitations set forth in Plaintiff's RFC. In addition to his argument regarding the weight given to the medical opinion evidence, Plaintiff also contends that the ALJ erred in not taking “into consideration Plaintiff's perfect 37-year work history.”

         V. Law and Analysis

         A. Alleged Onset Date

         Plaintiff's initial application for DIB benefits listed July 6, 2015 as the AOD.[24] However, the ALJ utilized a much earlier date, October 1, 2013, as Plaintiff's AOD.[25] On June 20, 2019, this Court ordered the parties to submit supplemental briefing regarding the correct onset date.[26]The Order requiring supplemental briefing noted that, while medical records prior to July 6, 2015 evidenced Plaintiff's improvement, the only treatment record after July 6, 2015 was a March 23, 2016 treatment note wherein Plaintiff reported “worsening” of pain.[27] Accordingly, clarification of the AOD was required since the ALJ relied on medical records evidencing Plaintiff's improved condition prior to July 6, 2015.

         Plaintiff has consistently maintained that October 1, 2013 is the correct AOD.[28] Although the Commissioner asserts in its supplemental briefing that July 6, 2015 is the correct AOD, the Commissioner also recognizes that “the AOD ‘is always the date the claimant alleges he or she because unable to work because of his or her medical condition, whether or not that date appears appropriate.'”[29] Considering Plaintiff's consistent position that October 1, 2013 is the correct onset date, the Court will also use October 1, 2013 as the AOD. By relying on the earlier AOD, Plaintiff is asserting that he was disabled even when treatment records reflect improvement and the ability to engage in “light duty” work.[30]

         B. Substantial Evidence Supports the Weight Provided to the Medical Opinion Evidence of Drs. Burdine and Callerame

          Plaintiff argues that the ALJ improperly rejected the medical opinions of two of Plaintiff's treating physicians, Drs. Burdine and Callerame.[31] Plaintiff asserts that if the opinions of Drs. Burdine and Callerame “were even partially credited, Plaintiff would be limited to at most sedentary work, ” and would be deemed disabled pursuant to the Medical-Vocational Guidelines.[32]Further, Plaintiff contends that his RFC does not accurately reflect the physical limitations recognized by Drs. Burdine and Callerame and that the ALJ did not provide the “requisite ‘good reasons'” to give the opinions of Drs. Burdine and Callerame “little weight.” The Court disagrees and finds that substantial evidence supports the ALJ's determination regarding the weight assigned to the opinions of Drs. Burdine and Callerame.

         Dr. Burdine completed a Physical Capabilities Evaluation form on April 20, 2016.[33] Dr. Callerame completed the same form evaluation on June 23, 2016.[34] Both physicians opined therein that Plaintiff could sit for 2 hours in an 8 hour day, stand and walk for 2 hours in an 8 hour day, and could occasionally (defined as “up to 33% of the day”) lift up to 10 pounds. Both physicians additionally checked “yes” in response to whether fatigue and pain would prevent Plaintiff “from working full-time at even a sedentary position.” Plaintiff correctly notes that such limitations, if credited by the ALJ, would preclude Plaintiff from “light work.”[35]

         In considering the opinions of Drs. Burdine and Callerame, the ALJ explained that:

although they are treating sources Dr. Burdine's and Dr. Callerame's limitations are not consistent with the record as a whole and are not supported by examination findings or the claimant's reported activities. For instance, the claimant's reported activities such as driving or using a riding lawnmower are not consistent with a complete prohibition against stooping. Furthermore, in March 2016 Dr. Burdine observed decreased sensation, weakened left grip, and pain with range of motion but normal gait and station, overall normal strength, normal reflexes, and normal coordination. He also noted potential “exaggerated” symptoms. Consequently, the opinions of Dr. Burdine and Dr. Callerame are given little weight.[36]

         Generally, the “opinion of the treating physician who is familiar with the claimant's impairments, treatments and responses, should be accorded great weight in determining disability.”[37] However, an ALJ may reject the treating source's opinion when “‘there is competing first-hand medical evidence and the ALJ finds as a factual matter that one doctor's opinion is more well-founded than another.'”[38] If the ALJ's decision is supported by substantial, contradictory, first-hand evidence from another physician, the ALJ is “not required to go through all six steps in Newton [because] . . . the ALJ is responsible for resolving conflicts in the evidence, and we will not substitute our judgment for his.”[39] Further, “the ALJ may give ‘less weight, little weight, or even no weight' to the opinion of a treating physician upon a showing of good cause.”[40] In summary, an ALJ is free to discredit an opinion of a treating physician when it is contradicted by the evidence in the record.[41] Where an ALJ has found a treating physician's opinion to be inconsistent with that physician's own treatment records and other evidence in the record, this Court has affirmed the ALJ's rejection of that opinion.[42]

         Although Dr. Callerame and Dr. Burdine both opined via Physical Capacities Evaluation forms that Plaintiff had could not sit, stand, or walk for more than a total of four hours in an eight hour day[43] and could only occasionally lift up to ten pounds, substantial evidence supports the ALJ's determination that these “limitations are not consistent with the record as a whole and are not supported by examination findings or by the claimant's reported activities.”[44] Medical records (including those of Drs. Burdine and Callerame) before[45] and after[46] Plaintiff's AOD consistently record normal posture and gait, full range of motion, and normal muscle strength and tone. Although the ALJ correctly noted that “[s]ubsequent records continue to indicate reports of pain and fatigue, with difficulty performing activities such as standing and walking, ”[47] Plaintiff's later medical records continue to reflect normal gait and strength upon physical exam.[48] Plaintiff's medical records following his October 2, 2013 anterior cervical disc fusion[49] and January 14, 2014 left carpal tunnel release[50] indicate significant improvement, [51] and the ALJ correctly noted that functional limitations imposed following surgery, including a prohibition against lifting more than ten pounds, were intended to be temporary.[52] Plaintiff consistently reported improvement with physical therapy, [53] and although Plaintiff reported some difficulties with respect to his daily activities, he also indicated that he was able to drive and could complete certain household chores and daily tasks.[54] Finally, although Plaintiff argues that the ALJ committed reversible error by failing to “rely on a contrary well-supported treating or examining source opinion, ”[55] the ALJ did afford the opinion of Dr. Scrantz, Plaintiff's surgeon, “partial weight” and concluded that the indication in Dr. Scrantz's treatment notes that Plaintiff “could perform light work by early 2014 is consistent with the overall evidence of record including minimal findings during examinations regarding gait, strength, range of motion, and coordination as well as with the claimant's reported activities.”[56] Because substantial evidence supports the weight afforded to the medical opinion evidence of Drs. Burdine and Callerame, this is not reversible error.[57]

         C. Substantial Evidence Supports the RFC Determination

         Plaintiff's arguments regarding the treatment of Dr. Burdine's and Dr. Callerame's medical opinions is also, at base, an assertion that Plaintiff's RFC “does not accurately depict the full impact” of Plaintiff's limitations.[58]

         The ALJ “is responsible for assessing the medical evidence and determining the claimant's residual functional capacity.”[59] A reviewing court must defer to the ALJ's decision when substantial evidence supports it, even if the court would reach a different conclusion based on the evidence in the record.[60] The court “may only scrutinize the record” and take into account whatever fairly detracts from the substantiality of the evidence supporting the ALJ's decision.[61]Accordingly, a “no substantial evidence” finding is appropriate only if there is a conspicuous absence of credible evidentiary choices or no contrary medical findings to support the ALJ's decision.[62]

         As noted above, the ALJ found that Plaintiff had the RFC to

perform light work as defined in 20 CFR 404.1567(b) except that he cannot climb ladders, ropes, or scaffolds and cannot perform overhead reaching. The claimant can occasionally stoop, kneel, crouch, and crawl. He cannot work on vibrating surfaces. Finally, he can occasionally use his left, non-dominant hand for gross manipulation or handling.[63]

         In developing Plaintiff's RFC, the ALJ reviewed Plaintiff's medical records from April 2013 through the beginning of 2017 and stated that Plaintiff's examinations “routinely show normal gait; station; toe, heel, and tandem walk; range of motion; reflexes; sensation; strength; and coordination.”[64] Although the ALJ noted that “[s]ubsequent records continue to indicate reports of pain and fatigue, with difficulty performing activities such as standing and walking, ”[65] the ALJ concluded:

Overall, therefore, the medical evidence of record does indicate some improvement with surgery and treatment, including indications following surgery of at least 70 percent improvement in both the claimant's neck and carpal tunnel symptoms. While medical imaging has continued to indicate some degenerative changes and potential herniations or impact of the claimant's nerve root, examinations still routinely demonstrate normal gait, strength, range of motion, reflexes, and coordination or only minimal symptoms such as mildly reduced strength or a mild limp.[66]

         The ALJ further explained “[i]n addition, the claimant is able to engage in activities such as driving, mowing the lawn, making small household repairs, completing personal care tasks, cooking simple meals, and engaging in household chores including sweeping, mopping, and washing dishes.”[67] For the same reasons substantial evidence exists to support the weight afforded to the medical opinions of Drs. Callerame and Burdine, substantial evidence supports the RFC determination.[68]

         D. The Fact that the ALJ Did Not Discuss Plaintiff's Work ...


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