Jennifer Sims v. Comm of Social Security , 406 F. App'x 977 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0048n.06
No. 09-5773 FILED
Jan 19, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JENNIFER DIANE SIMS, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) WESTERN DISTRICT OF
) KENTUCKY
COMMISSIONER OF SOCIAL SECURITY, )
) OPINION
Defendant-Appellee. )
BEFORE: BATCHELDER, Chief Judge; SUTTON and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Jennifer Diane Sims appeals a district court judgment that
affirmed the denial of her application for social security disability benefits. After careful
consideration of the record and the parties’ arguments, we concur in the district court’s assessment
that the decision of the Commissioner of Social Security is supported by substantial evidence. We
therefore affirm.
I. BACKGROUND
Plaintiff Jennifer Sims of Hopkinsville, Kentucky was born on April 16, 1968. In addition
to a high school education, she completed two years of college. She has worked as a medical
assistant, phlebotomist and courier. She sustained multiple injuries in a motor vehicle accident on
December 22, 2004, necessitating two back surgeries. She has not been gainfully employed since
then. She filed her application for disability benefits on April 18, 2005, claiming disability due to
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injuries sustained in the accident. After her application was initially denied, an administrative law
judge (“ALJ”) conducted a hearing on August 16, 2007, at which plaintiff was represented by
counsel. ALJ Kathleen Thomas issued her decision on December11, 2007. She found that plaintiff
had severe impairments that precluded her past work, including knee pain, obesity, depression,
anxiety, a pain disorder, and post-traumatic stress disorder. However, the ALJ also found that
plaintiff’s statements about the severity of her pain were not entirely credible, and that she was able
to perform a limited but significant range of sedentary work. Relying on the testimony of a
vocational expert, the ALJ concluded that plaintiff was not disabled because a significant number
of jobs within her residual functional capacity were available. That opinion became the final
decision of the Commissioner when the Appeals Council declined further review on July 14, 2008.
Plaintiff then filed a timely complaint in the United States District Court for the Western
District of Kentucky. The district court adopted the magistrate judge’s report and recommendation
over plaintiff’s objections and upheld the Commissioner’s decision on May 1, 2009. The district
court (1) found no grounds to disturb the ALJ’s assessment of plaintiff’s credibility; (2) concluded
the ALJ had not improperly discounted the opinion of plaintiff’s treating physician; and (3) held that
the hypothetical questions upon which the vocational expert’s testimony was based were not
materially flawed. Plaintiff has appealed, raising the same three issues she addressed to the district
court.
II. ANALYSIS
We review the judgment of the district court de novo. White v. Comm’r of Soc. Sec., 572
F.3d 272, 281 (6th Cir. 2009). The Commissioner’s conclusions must be upheld unless the
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Commissioner applied erroneous legal standards or made findings of fact that were not supported
by substantial evidence. Id. “Substantial evidence” is such evidence as “a reasonable mind might
accept as adequate to support a conclusion.” Id. (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). It is a less exacting standard than preponderance of the evidence. Bass v. McMahon, 499
F.3d 506, 509 (6th Cir. 2007). In determining whether the Commissioner’s decision is supported
by substantial evidence, “we do not try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.” Id.
A. Deference Owed Treating Physician
First, plaintiff contends the Commissioner’s decision is flawed because the ALJ improperly
discounted the opinion of her treating physician. In June 2006, plaintiff was seen by Gary Spencer,
M.D., a family physician who had treated her before her accident, for a check-up and consultation.
On physical examination, Dr. Spencer noted tenderness in the lower lumbar and left knee areas, and
pain down both legs secondary to plaintiff’s back surgeries. In Dr. Spencer’s opinion, plaintiff could
not stand for more than one or two hours and could not work a full eight-hour shift due to back and
leg pain.
Plaintiff contends that under the Commissioner’s own regulations, particularly 20 C.F.R. §
404.1527, the opinion of Dr. Spencer, as a treating physician, is entitled either to controlling weight
or at least great deference. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242-43 (6th Cir. 2007)
(treating physician’s opinion is controlling if well-supported by medical evidence and not
inconsistent with other substantial evidence; otherwise, the opinion is presumptively entitled to great
deference, the weight to be determined by the ALJ based on consideration of numerous factors); cf.
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Bass, 499 F.3d at 511 (ALJ is not bound by physician’s conclusory opinion that claimant is unable
to work). If a treating physician’s opinion is not accorded controlling weight, the ALJ is required
to explain how the opinion was weighed and why. 20 C.F.R. § 404.1527(d); Bass, 499 F.3d at 511.
Plaintiff contends the ALJ did not give Dr. Spencer’s opinion substantial deference and violated the
applicable regulation by failing to adequately explain why.
We disagree. Like the district court, we hold that the ALJ committed no error in her
evaluation of Dr. Spencer’s opinion. The ALJ was fully cognizant of and explicitly observed her
duty to give careful consideration to Dr. Spencer’s opinion. She explained her refusal to grant Dr.
Spencer’s opinion controlling weight as follows:
Dr. Spencer’s opinion is not supported by objective medical findings or findings on
examination, but rather based on what the claimant has subjectively told him, which
is not fully credited. Objective testing (MRI’s, x-rays, EMG/NCS) are either mild,
normal or negative. At the time he offered this opinion, Dr. Spencer had not treated
the claimant since well before her injury (about 18 months prior). Her treating
specialists did not impose such limitations, and they are in a better position to
evaluate her limitations/residuals. Dr. Spencer has since treated the claimant on a
routine basis, [prescribing] medication refills every three to four months, but there
is no change in her condition which would warrant the limitations he assessed.
Moreover, the claimant did return to work in December 2005, but could not tolerate
the prolonged standing/walking, bending and lifting associated with that job. She has
consistently stated that prolonged standing and walking exacerbates her pain. She
testified she is able to do light chores around the house, as long as she can sit and
take the weight off her back/buttocks. Accordingly, Dr. Spencer’s opinion is not
persuasive and cannot be afforded “controlling weight.”
A.R. 20, ALJ Decision p. 9. The ALJ thus considered several appropriate factors in evaluating Dr.
Spencer’s opinion, including: (1) the frequency of examination and length of his treatment
relationship with plaintiff; (2) the nature and extent of their relationship; (3) the lack of medical
evidence supporting his opinion; (4) the inconsistency of his opinion with objective testing results;
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and (5) the fact that Dr. Spencer is not a specialist. See 20 C.F.R. § 404.1527(d); Bass, 499 F.3d at
511-12.
The ALJ correctly noted that Dr. Spencer’s conclusory opinion about plaintiff’s ability to
work was based largely on plaintiff’s subjective complaints and was not supported by other medical
evidence in the record. See 20 C.F.R. § 404.1527(b) (medical opinions are to be evaluated in the
context of the record as a whole).1 In September 2005, plaintiff’s medical records were reviewed
by John Gedmark, M.D., who completed a physical residual functional capacity assessment. The
ALJ noted that Dr. Gedmark identified exertional limitations resulting from plaintiff’s physical
impairments that would limit her to light work, as of December 2005. This opinion was consistent
with that of rehabilitation specialist Barton W. Huddleston, M.D., who, in October 2005, after testing
for and finding no neuropathic abnormalities in plaintiff’s lower back and left leg, believed that she
was showing improvement and would be able to return to part-time work after five to six weeks of
continued conditioning, with eventual return to full-time work within six to eight weeks of her initial
return to work.
In addition, Dr. Spencer’s opinion was arguably at odds with the mental residual capacity
assessment completed by Alex Guerrero, M.D., in November 2005. While Dr. Guerrero recognized
that plaintiff suffered from anxiety and pain disorder, the only functional limitations he identified
1
Moreover, Dr. Spencer’s implied opinion that plaintiff was unable to work is tantamount
to a disability opinion, a matter reserved to the Commissioner for determination. Such an opinion
by a treating physician is not entitled to “any special significance.” 20 C.F.R. § 404.1527(e). See
also Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (recognizing the
determination of disability to be the prerogative of the Commissioner, not the treating physician).
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were non-disabling: “mild” limitation in activities of daily living; and “moderate” limitation in
social functioning and in maintaining concentration, persistence and pace. Dr. Guerrero noted that
these impairments limited plaintiff’s ability to work, but she retained the ability: (1) to understand,
remember, and carry out simple instructions and chores; (2) to relate adequately with co-workers and
supervisors for task completion; and (3) to adapt to the changes in non-complex and “not too
stressful” work situations.
We are thus satisfied that the ALJ gave adequate deference to Dr. Spencer’s opinion by
finding that plaintiff had impairments that precluded her past work and significantly limited the types
of other jobs that she could perform. See Bass, 499 F.3d at 512; Warner, 375 F.3d at 391-92. To the
extent the ALJ discounted Dr. Spencer’s implied opinion that plaintiff was unable to perform any
work, however, we concur in the district court’s determination that the ALJ’s analysis is sound and
supported by substantial evidence.
B. Credibility Assessment
The ALJ devoted some eight pages of her thirteen-page opinion to a recapitulation of the
evidence, including plaintiff’s testimony, considered in support of plaintiff’s claim. She concluded
this summary as follows:
After considering the evidence of record, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to produce some
of the alleged symptoms, but that the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible.
A.R. 22, ALJ Decision p. 11. Plaintiff insists this explanation is insufficient to justify rejection of
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her complaints of pain. In response, the district court correctly noted that the ALJ’s credibility
assessment could be disturbed only for a compelling reason, citing Smith v. Halter, 307 F.3d 377,
379 (6th Cir. 2001). See also Warner, 375 F.3d at 392 (recognizing ALJ’s credibility assessment
is entitled to “great deference” because ALJ is charged with duty of observing witness’s demeanor).
The district court held that plaintiff had presented no such compelling reason.
Our review of the ALJ’s decision confirms that her credibility assessment—which did not
entail an outright rejection of plaintiff’s testimony, but only a partial crediting of it—is well-
explained in light of the record evidence. A.R. 15-22, ALJ Decision pp. 4-11. Plaintiff testified that
she suffered from chronic pain that limited her ability to stand, walk, and sit for any significant
length of time. She also indicated that she was depressed and anxious. Yet, the ALJ noted that
plaintiff’s injuries had largely healed, that testing was negative for radicular pain, and that plaintiff
had not been referred to treating specialists or to a pain management program.
A claimant’s testimony may be discounted if it is contradicted by the medical reports and
other evidence. Warner, 375 F.3d at 392. The medical evidence indicates that plaintiff had severe
impairments, but it does not support her testimony regarding the extent of her limitations. The
ALJ’s analysis amply demonstrates that her finding that plaintiff was not fully credible is supported
by substantial evidence. We find no error.
C. Vocational Expert Testimony
Because the ALJ determined that plaintiff had severe impairments and could no longer
perform the duties of her past work, the burden shifted to the Commissioner to show that a
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significant number of jobs within plaintiff’s residual functional capacity were available. See Harmon
v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999). The ALJ posed a hypothetical question to a vocational
expert to determine the types of jobs that might be available. The ALJ first asked the vocational
expert to assume a claimant with the same educational and vocational background as plaintiff Sims,
who could perform a limited range of light work. The ALJ indicated the hypothetical claimant could
stand and walk for only two hours a day. She also asked the vocational expert to assume the
claimant could perform no more than occasional climbing, kneeling, crouching, and crawling, with
no climbing of ladders, ropes, or scaffolds. Finally, the ALJ asked the vocational expert to assume
the claimant was restricted to simple work that was not complex or detailed and to jobs that had no
interaction with the general public. The vocational expert indicated that a significant number of
unskilled, sedentary jobs would be available to such a claimant, including jobs as a surveillance
system monitor and bookkeeper/office worker.
Plaintiff contends the vocational expert’s testimony is unreliable because the hypothetical
questions posed by the ALJ did not include all of her limitations, citing Howard v. Comm’r of Soc.
Sec., 276 F.3d 235, 241 (6th Cir. 2002). Specifically, she contends the ALJ should have asked the
vocational expert to also assume that the claimant was moderately limited in her ability to respond
appropriately to changes in the work setting, as this limitation was noted in Dr. Guerrero’s mental
residual functional capacity assessment. The district court considered the omission of this limitation
to be an error, but not one that rose to the level of reversible error. The court observed that there was
no evidence to suggest that the addition of the limitation would have impacted the ability of the
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hypothetical claimant to perform the duties of such available sedentary jobs as surveillance system
monitor and bookkeeper/office worker.
Further, as the Commissioner points out, Dr. Guerrero ultimately concluded that plaintiff
could adapt to changes in non-complex work situations that were not too stressful. It thus appears
that the ALJ adequately accounted for this limitation by restricting the hypothetical question to
simple work and by excluding complex or detailed jobs. See Longworth v. Comm’r of Soc. Sec., 402
F.3d 591, 597-98 (6th Cir. 2005).
Plaintiff also argues that the hypothetical questions did not reflect Dr. Guerrero’s conclusion
that she was moderately limited in her ability to maintain attention and concentration. This argument
fails because the ALJ asked the vocational expert if this restriction would impact a claimant’s ability
to work as a security monitor, and the expert testified that it would not.
The reports of Drs. Gedmark and Guerrero provided substantial support for the assumptions
in the hypothetical questions the ALJ posed to the vocational expert. The hypothetical questions
incorporated relevant impairments; any shortcoming was not so significant as to render the
vocational expert’s testimony unreliable. The vocational expert’s responses therefore satisfied the
Commissioner’s burden of showing the existence of a significant number of jobs whose requirements
were within plaintiff’s residual functional capacity. Yes, the vocational expert’s testimony could
have been further refined; but as the district court pointed out, plaintiff’s counsel had the opportunity
to cross-examine, but asked only one question and did not probe the deficiency now identified on
appeal.
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III. CONCLUSION
For the foregoing reasons, we concur in the district court’s determination that the
Commissioner’s final decision denying plaintiff’s application for disability benefits is not marked
by application of any erroneous legal standard and is supported by substantial evidence. The district
court’s judgment upholding the decision is therefore AFFIRMED.
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