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Burton v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

March 6, 2017

LISA E. BURTON PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security[1] DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying her claim for Social Security disability benefits. The fact and law summaries of Plaintiff and Defendant are at Dockets 14 and 19. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. Docket 10.

         Because the administrative law judge's (ALJ's) decision was supported by substantial evidence in the administrative record and was in accord with applicable legal standards, the Court will AFFIRM the Commissioner's final decision and DISMISS Plaintiff's complaint.

         Background facts and procedural history

         Plaintiff filed an application for Social Security disability benefits in August 2012. The administrative record contains no medical opinion regarding what she can still do despite her impairments, or her physical residual functional capacity (RFC).[2]

         In December 2012, Plaintiff underwent right carpal tunnel release and cervical spine surgery.

         In March 2013, in light of the available medical records, the Commissioner's non-examining agency physician, Alex Guerrero, opined that, within 12 months of the surgeries, [3] Plaintiff will likely have an RFC to perform a limited range of light work, [4] with standing/walking limited to 4 hours per 8-hour workday. Administrative Record (AR), p. 144.

         At the administrative hearing, the vocational expert (VE) identified a significant number of jobs in the national economy that an individual who has the RFC opined by Dr. Guerrero can perform.

         The ALJ gave "great weight" to Dr. Guerrero's RFC, which the ALJ found to be "consistent with the medical evidence of record and [Plaintiff's] activities." ALJ's decision, AR, p. 66. The ALJ concluded that Plaintiff is not disabled because, although she cannot perform her past relevant work, she retains the ability to perform a significant number of jobs in the national economy, i.e., those identified by the VE. AR, pp. 66-67.

         Discussion

         Plaintiff argues that the ALJ erred in giving great weight to Dr. Guerrero's RFC because it was speculative (i.e., based on her likely ability to perform a limited range of light work 12 months into the future) and did not take into account her actual, subsequent medical history and treatment.

         There will always be a gap between the time the agency experts review the record and give their opinions and the time the ALJ issued his/her decision. Kelly v. Commissioner, 314 F.App'x 827, 831 (6th Cir. 2009). Therefore, the ALJ's reliance on Dr. Guerrero's opinion (in support of a finding of lack of disability) was necessarily imperfect.

         The dispositive point in this case is not the imperfect quality of Dr. Guerrero's opinion but the absence in the administrative record of any contrary medical opinion. See 20 C.F.R. §§ 404.1512(a) ("In general, you have to prove to us that you are blind or disabled") and 404.1545(a)(3) ("In general, you are responsible for providing the evidence we will use to make a finding about your [RFC]").

         The administrative record does contain medical records and treatment notes in support of Plaintiff's disability claim. Records and notes, however, are not a substitute for a medical opinion. See Fensterer v. Commissioner, 2013 WL 4029049 (E.D.Mich.) quoting Nguyen v. Secretary, 172 F.3d 31, 35 (1st Cir. 1999) (Reviewing courts are "simply not qualified to interpret raw medical data in functional terms"); see also Wycoff v. Commissioner, 2014 WL 6685077 (S.D.Ohio) quoting 20 C.F.R. ยง 404.1527(a)(2) (Treatment notes do not qualify as medical opinions unless they "reflect judgments about the nature and severity of ...


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