United States District Court, E.D. Kentucky, Southern Division, Pikeville
STEVEN R. PATRICK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
EDWARD B. ATKINS, Magistrate Judge.
On September 29, 2010, the Plaintiff, Steven R. Patrick, filed a Title II application for a period of disability and disability insurance benefits. He also filed a Title XVI application for supplemental security income on February 1, 2011. In both applications, he alleged the onset of disability on January 10, 2009. [TR. 17]. The claims were denied initially on February 22, 2011, and upon reconsideration on May 4, 2011. [TR. 17]. He sought and was granted a hearing, where he appeared and testified before an Administrative Law Judge [ALJ] on April 30, 2012. [TR. 17]. On May 30, 2012, the ALJ denied his applications for benefits, finding that Patrick was not disabled under the Social Security Act. [TR. 28]. The Appeals Counsel denied his request for review on August 12, 2013, and on September 14, 2013, Patrick filed the complaint in this action. [R. 1]. He and the Defendant now seek summary judgment, and the matter is ripe for review. For the reasons stated more fully below Patrick's Motion for Summary Judgment R. 12] will be DENIED, and the Defendant's Motion for Summary Judgment [R. 13] will be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the alleged onset of disability, Patrick was a high school educated 50 year old male, with some vocational training in welding and a past employment history of working as a canteen clerk, material handler and shipper. He ceased employment in January 2009, due to poor circulation in his arms and legs, diabetes, asthma, high cholesterol, high blood pressure, arthritis, and acid reflux. [TR. 181]. At step one of the sequential evaluation process, the ALJ determined that Patrick had not engaged in substantial gainful activity since the alleged onset of his disability. At step two, the ALJ found Patrick to have the following severe impairments: lumbar strain; osteoarthritis; reduced visual acuity; asthma; diabetes mellitus; and obesity. Although the ALJ determined that Patrick suffered from hypertension, hyperlipidemia, gastroesophageal reflux disease (GERD), and a hiatal hernia, he found that these were non-severe impairments. At step three, the ALJ determined that Patrick does not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Considering the evidence before him, the ALJ found that Patrick had the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that he is limited to occasional climbing, stooping, kneeling, crouching, and crawling. In addition, he must avoid concentrated exposure to excessive vibration and irritants such as fumes, odors, dust, gasses, and poorly ventilated areas. Finally, the ALJ opined that Patrick is limited to occupations that do not require 20/20 vision. In light of this residual functional capacity, at step four of the sequential evaluation process, the ALJ found that Patrick was unable to perform any of his past relevant work as a canteen clerk, material handler and shipper, which was listed in the Dictionary of Occupational titles as medium and heavy work, respectively. Finally, at the fifth and final step of the sequential evaluation process, the ALJ asked vocational expert, Leah P. Salyers, whether jobs exist in the national economy for an individual with Patrick's age, education, work experience, and residual functional capacity. The expert testified that given these factors, the individual would be able to perform the requirements of occupations such as Product Packager and Counter Cashier, Machine Monitor, and Product Grader and Sorter, in the light and sedentary exertional levels, respectively. [TR. 42]. Finally, the expert testified that these occupations exist in significant numbers in the national economy. Therefore, the ALJ found Patrick "not disabled" and denied his claims for benefits.
He filed a complaint in the instant action seeking review of the decision on September 14, 2013. [R. 1].
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a reviewing court "must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record." Longworth v. Comm'r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (citations omitted). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. See Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)(quoting Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981)). The scope of judicial review is limited to the record itself, and the reviewing court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Hogg v. Sullivan, 987 F.2d 328, 331 (6th Cir. 1993) (citations omitted). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must be upheld if it is supported by substantial evidence. Foster, 279 F.3d at 353.
In this action, the Plaintiff seeks an order either reversing the Commissioner's decision and remanding the action for an award of benefits, or remanding the matter back to the ALJ for further consideration.[R. 1]. In support of these demands for relief, he alleges that the ALJ committed the following errors: (1) failed to consider Mr. Patrick's diagnosis of GERD as a severe impairment; (2) erred in finding that Patrick's back pain, knee pain and shoulder pain were non-medically determinable impairments; (3) inaccurately assessed a residual functional capacity "which resulted in the ALJ failing to following [sic] Step Two of the five step sequential evaluation process"; (4) erred in relying on the medical opinion of an anesthesiologist, who did not examine Patrick, nor did he have the opportunity to review the complete file; and
(5) failed to give adequate reasons for assigning little weight to the treating physician and greater weight to a non-examining consulting physician. However, for the reasons that follow, Patrick does not justify the relief he requests, and his motion for summary judgment will be denied.
I. a. Whether Mr. Patrick's diagnosis of GERD is a severe impairment.
Patrick relies on the statement by Dr. Short, a claimed treating physician, that his GERD causes frequent coughing due to the reflux of acid up into the bronchi and lungs and, as a result, he is unable to lie flat. Therefore, Patrick contends, his GERD should have been found to be a severe impairment. However, an ALJ does not commit reversible error simply by finding an impairment to be non-severe where other impairments are found to be severe. This is because an ALJ may still consider non-severe impairments when determining a claimant's residual functional capacity and therefore his ability to engage in substantial gainful activity. As stated in Mazairz v. Sec'y Health & Human Serv., 837 F.2d 240, 244 (6th Cir. 1987), "[s]ince the Secretary properly could consider claimant's [non-severe cervical impairment] in determining whether claimant retained sufficient residual functional capacity to allow him to perform substantial gainful activity, the Secretary's failure to find that claimant's cervical condition constituted a severe impairment could not constitute reversible error." Therefore, as the ALJ found Patrick to have the severe impairments of lumbar strain; osteoarthritis; reduced visual acuity; asthma; diabetes mellitus; and obesity, he did not commit reversible error in failing to find Patrick's GERD to be severe. As stated above, the ALJ may still consider what he believes are non-severe impairments, in this case GERD, in determining a claimant's residual functional capacity and therefore the claimant's ability to engage in substantial gainful activity. See also McGlothlin v. Comm'r, 299 F.App'x 516, 522 (6th Cir. 2008)(finding it "legally irrelevant" that the ALJ determined that some of claimant's impairments were severe and some were not because "once any one impairment is found to be severe, the ALJ must consider both severe and non-severe impairments in the subsequent steps").
Therefore, the ALJ's decision to consider Patrick's diagnosis of GERD as a non-severe does not constitute error that requires ...