Turner v. Comm Social Security , 267 F. App'x 456 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0130n.06
Filed: March 4, 2008
No. 07-5235
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL TURNER,
Plaintiff-Appellant, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellee.
____________________________________/
BEFORE: BOGGS, Chief Circuit Judge; GIBBONS, Circuit Judge; and BELL, Chief
District Judge.*
BELL, Chief District Judge. Plaintiff-Appellant Michael Turner appeals the district
court’s decision affirming Defendant-Appellee Commissioner of Social Security’s denial of
disability benefits. Turner argues that the Administrative Law Judge (“ALJ”) erred in
rejecting the opinions of Turner’s treating physicians. For the reasons set forth below, we
affirm the judgment of the district court.
I.
*
The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
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Turner v. Comm’r of Soc. Sec.
Michael Turner was born on August 1, 1961. He attended school through the eighth
grade. For over twenty years Turner worked as a dipper in a plant that manufactures truck
radiators. This job required Turner to put brass plates on the tops of radiators, dip them in
a chemical solution, dip them in hot lead, and then pick them up and allow the lead to drip
off. In that capacity, Turner was required to regularly lift between 75 and 125 pounds.
Turner’s employment at the truck radiator plant ended on April 28, 2004, for reasons related
to his alleged disability.
Turner applied for Social Security Disability and Disability Insurance Benefits on
May 4, 2004, alleging disability as of April 28, 2004, due to degenerative disc disease and
chronic lumbar pain. Turner also filed an application for Supplemental Security Income on
May 18, 2005. After his application was denied initially and on reconsideration, Turner
requested a hearing before an ALJ. On January 24, 2006, the ALJ determined that Turner
was not disabled. On March 29, 2006, the Appeals Council denied Turner’s request for
review, “at which point the ALJ’s decision became the final decision of the Commissioner
of Social Security.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004)
(citing Miles v. Chater, 84 F.3d 1397, 1399 (11th Cir. 1996)). On May 15, 2006, Turner filed
a civil action in federal district court. On December 19, 2006, the district court affirmed the
Commissioner’s denial of benefits and this appeal timely followed.
II.
Judicial review of a final decision of the Commissioner of Social Security is limited
to determining whether the ALJ applied the correct legal standards in reaching her decision
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Turner v. Comm’r of Soc. Sec.
and whether there is substantial evidence in the record to support her findings. Longworth
v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). This court reviews the district
court’s legal conclusion that the ALJ’s decision was supported by substantial evidence de
novo. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). “‘Substantial evidence is
defined as such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (quoting
Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994)). In deciding
whether substantial evidence supports the ALJ’s decision “we do not try the case de novo,
resolve conflicts in evidence, or decide questions of credibility.” Bass, 499 F.3d at 509
(citing Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)). The Commissioner’s findings
of fact, “if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g).
A.
Turner argues that the ALJ erred in giving greater weight to the opinion of
Dr. Richard Watson than to Turner’s treating physicians, Drs. John Kelly and Jeremy Engel.
Dr. Watson was retained by the Social Security Administration to evaluate Turner’s medical
condition. Dr. Engel was Turner’s initial treating physician. Dr. Engel referred Turner to
Dr. Kelley, a neurologist, who began treating Turner on March 31, 2004.
In November 2003, Dr. Engel placed Turner under work restrictions. Turner’s
employer did not have a permanent position that would accommodate the restrictions, but
offered to reduce the amount of lifting done by Turner for two months. Dr. Kelly agreed
with this plan. On January 30, 2004, Dr. Engel imposed the following work restrictions:
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Turner v. Comm’r of Soc. Sec.
frequent lifting limited to five pounds, occasional lifting limited to ten pounds, standing
limited to thirty minutes, and sitting limited to twenty minutes. Dr. Engel based these
limitations on the November 14, 2003, magnetic resonance image (“MRI”) of the disc
between vertebrae nine and ten of the thoracic spine and on Turner’s kidney stones.
Dr. Engel had based the November 2003 restrictions on this same MRI. The interpreting
radiologist described the results of the November 14, 2003, MRI of Turner’s thoracic spine
as follows:
There is a preservation of vertebral body height and disc space throughout the
thoracic spine. There is no intrinsic cord abnormality. There are tiny left
paracentral disc protrusions at T5-6 and T6-7. There are also small disc bulges
at T9-10 and T10-11. None of these protrusions or bulges compress the thecal
sac in a significant way or compress the cord.
(Admin. R. 125.) Dr. Kelly’s notes on the results of the November 14, 2003, MRI reflect that
the MRI of Turner’s lumbar spine was “normal” and the MRI of his thoracic spine showed
“[t]iny disc protrusions, inconsequential and noncompressive.” (Id. at 144.) With respect
to Turner’s kidney stones, he complained of right flank pain on November 27, 2001, and a
January 20, 2002, x-ray showed evidence of kidney stones.
On March 31, 2004, Turner advised Dr. Kelly that his employer could not
accommodate Dr. Engel’s twenty-pound lifting restriction.1 In the absence of an
accommodation, Turner had continued with unrestricted work. Dr. Kelly advised Turner to
move to less physically demanding employment. Dr. Kelly’s physical exam of Turner on
1
The administrative record does not indicate when Dr. Engel imposed the twenty-
pound lifting restriction.
No. 07-5235 5
Turner v. Comm’r of Soc. Sec.
March 31 found normal muscle strength and tone, no atrophy in the lumbar or lower
extremity musculature, sensory exam was intact, normal spontaneous gait, and moderate
thoracolumbar paraspinous tenderness with a palpable paraspinous low grade muscle spasm.
The exam revealed a range-of-motion for lumbar flexion of 75 degrees, lumbar extension of
20 degrees, left lateral bending of 30 degrees, and right lateral bending of 30 degrees. On
April 30, 2004, two days after Turner’s employment terminated, Dr. Kelly assessed Turner’s
condition as follows:
Michael basically has a repetitive strain injury from the work that he does. We
again had a long discussion about this. There is not really a medical solution
to this problem. I can suppress his pain somewhat, but not actually resolve or
control this condition and it will progress so long as he continues the present
work activities.
I have placed him on work restrictions today and I feel that his best recourse
is to go out on disability.
(Admin. R. 149.) Dr. Kelly’s physical exam of Turner on April 30 was identical to the
March 31 exam. On May 21, 2004, Dr. Kelly reiterated the need for Turner to cease doing
highly repetitive work. Dr. Kelly’s physical exam of Turner on May 21 was identical to the
April 30 exam except there was no tenderness or muscle spasm and Turner’s lumbar flexion
had decreased to 45 degrees. At the June 9, 2004, exam, Dr. Kelly noted that Turner had
ceased doing such highly repetitive work. Dr. Kelly’s physical exam of Turner on June 9
was identical to the May 21 exam. On July 22, 2004, Dr. Kelly concluded that Turner was
“permanently occupationally disabled.” (Admin. R. 161.) Dr. Kelly imposed the following
restrictions:
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Turner v. Comm’r of Soc. Sec.
1. No lifting or carrying more than 5 lbs infrequently.
2. No pushing or pulling more than 10 lbs very infrequently.
3. No bending, stooping, or crawling.
4. No driving automobile or operating dangerous machinery due to
medication side effects.
5. Must be allowed to change positions as needed for comfort.
Specifically he is unable to sit for more than 30 minutes at one time or
more than 3 hrs [sic] per day without changing positions. He is unable
to stand or walk for more than 15 minutes at one time or more than one
hour cumulative per day.
These restrictions are permanent. Michael is permanently disabled and will
never be able to return to work. He has been encouraged to apply for disability
benefits.
(Admin. R. 165.) Dr. Kelly’s physical exam of Turner on July 22 was identical to the
May 21 and the June 9 exams. Dr. Kelly again examined Turner on October 14, 2004, and
May 26, 2005, and the results of those exams were identical to the May 21, June 9, and
July 22 exams.
Dr. Watson testified at the January 12, 2006, hearing before the ALJ. Dr. Watson did
not examine Turner. Instead, Dr. Watson formed his opinion by reviewing Turner’s medical
records. Dr. Watson concluded that Turner could do sedentary to light work. Dr. Watson
recommended the following restrictions: frequent lifting limited to ten pounds, occasional
lifting limited to thirty pounds, sitting limited to one-hour increments, with a total limitation
of seven hours per day, standing/walking limited to one-hour increments, with a total
limitation of four hours per day. Dr. Watson disagreed with the work restrictions imposed
No. 07-5235 7
Turner v. Comm’r of Soc. Sec.
by Drs. Engel and Kelly because in his view Turner’s medical records lacked evidence of the
radiculopathy2 and structural problems that would warrant the restrictions they imposed.
Dr. Donald Shrier testified as a vocational expert. Dr. Shrier testified that Turner
could do unskilled sedentary work based on the functional limitations described by
Dr. Watson. The specific jobs he identified were hand-packing, bench assembly, and
production inspection. Dr. Shrier also testified that Turner would be unable to work based
on the functional limitations described by Dr. Kelly.
B.
“Generally, the opinions of treating physicians are given substantial, if not controlling,
deference.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (citing King
v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984), and 20 C.F.R. § 404.1527(d)(2)). However,
“[t]he treating physician’s opinion must be supported by sufficient medical data.” Jones, 336
F.3d at 477 (citing Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985)). “If the treating
physician’s opinion is not supported by objective medical evidence, the ALJ is entitled to
discredit the opinion as long as [she] sets forth a reasoned basis for her rejection.” Id. (citing
Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987)). In discrediting the opinion of a
treating source the ALJ must consider 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, the specialization of
2
Radiculopathy is “disease of the nerve roots.” Dorland’s Illustrated Medical
Dictionary 1595 (31st ed. 2007).
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Turner v. Comm’r of Soc. Sec.
the treating source, and other factors that tend to support or contradict the opinion. 20 C.F.R.
§ 404.1527(d)(2)(i-ii), (d)(3-6) (2007); Wilson, 378 F.3d at 544.
The ALJ found Dr. Watson’s opinion to be more consistent with the clinical evidence.
In Dr. Watson’s opinion, the clinical findings that one would expect to find in a person with
the conditions diagnosed by Dr. Kelly were not present. Dr. Watson specifically indicated
that to support Dr. Kelly’s diagnosis one would expect radiculopathy, structural problems,
or a greater loss of range-of-motion. The ALJ concluded that Drs. Engel and Kelly’s
diagnoses were “almost entirely” based on Turner’s subjective reports. (Admin. R. 20.) The
ALJ also noted that she did not find Turner’s subjective reports “entirely credible.” (Id.)
Lastly the ALJ noted that Dr. Engel’s work restrictions were inconsistent with Turner’s own
testimony about his ability to engage in physical activity.
In evaluating the medical opinions, the ALJ properly considered whether the doctors
presented relevant clinical evidence to support their opinions. 20 C.F.R. § 404.1527(d)(3)
(“The more a medical source presents relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight we will give that opinion. The better
an explanation a source provides for an opinion, the more weight we will give that
opinion.”). The ALJ identified the following areas where the medical evidence was
insufficient to support the conclusions of Drs. Engel and Kelly:
The claimant clearly experiences pain from his lumbar strain. However, there
is no evidence of nerve root involvement and no diagnostic studies confirming
any radiculopathy that would make his leg hurt to the extent he alleges.
Straight leg raising is negative, and MRIs and x-rays have shown only mild
No. 07-5235 9
Turner v. Comm’r of Soc. Sec.
degenerative changes. He does not walk with an antalgic gait,[3] he has been
observed sitting with no antalgic behaviors, and his clinical findings have been
normal except for occasional spasm and varying range of motion limitations.
Further, as noted below, medical expert Dr. Watson said that the claimant’s
overall range of motion really is not significantly restricted. Ultimately, the
combined diagnostic and clinical findings do not correspond to the claimant’s
reported subjective pain.
(Admin. R. 19.) The ALJ set forth a reasoned basis for rejecting the opinions of Turner’s
treating physicians by identifying the foregoing areas where medical evidence was lacking
as well as by analyzing the work restrictions imposed by Drs. Engel and Kelly. Thus, the
greater weight that the ALJ accorded to the non-treating physician, Dr. Watson, was
permissible.
Dr. Kelly also stated that in his opinion Turner is “permanently disabled” or
“permanently occupationally disabled.” (Admin. R. 161, 165.) The ALJ disregarded this
part of Dr. Kelly’s opinion. “‘The determination of disability is [ultimately] the prerogative
of the [Commissioner], not the treating physician.’” Warner, 375 F.3d at 390 (modification
in Warner) (quoting Harris, 756 F.2d at 435). Moreover, the opinion of a medical source
that a person is “disabled” is not entitled to any “special significance” as that determination
is reserved for the Commissioner. 20 C.F.R. § 404.1527(e)(1), (e)(3). Thus, the ALJ did not
err in not deferring to Dr. Kelly’s determination that Turner is “permanently disabled.”
Turner does not dispute the vocational expert’s testimony independent of his objection
to the ALJ’s reliance on Dr. Watson’s opinion. The vocational expert testified that based on
3
An antalgic gait is a “limp adopted so as to avoid pain on weight-bearing structures
(as in hip injuries), characterized by a very short stance phase.” Dorland’s Illustrated
Medical Dictionary, supra, at 764.
No. 07-5235 10
Turner v. Comm’r of Soc. Sec.
the residual functional capacity described by Dr. Watson there are jobs that Turner can do
and those jobs exist in significant numbers, though Turner would be unable to resume his
work dipping truck radiators. The ALJ concluded that there are jobs that Turner can do and
those jobs exist in significant numbers.
Although generally an ALJ must give deference to the opinions of treating physicians,
in this case the ALJ set forth a reasoned basis for rejecting the opinions of the treating
physicians. The ALJ’s opinion with regard to the opinion of the non-treating physician and
the associated conclusion that Turner is not under a period of disability are supported by
substantial evidence. Therefore, the district court properly affirmed the ALJ’s opinion.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.