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Colyer v. Berryhill

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

March 28, 2019

MICHAEL H. COLYER PLAINTIFF
v.
NANCY A. BERRYHILL, Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge.

         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 his claim for Social Security disability benefits. The fact and law summaries of the parties are at Dockets # 13 and 14. 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.) The matter is ripe for determination.

         Because the Administrative Law Judge's (“ALJ's”) decision is supported by substantial evidence and Plaintiff's arguments are unpersuasive, the Court will AFFIRM the Commissioner's final decision and DISMISS Plaintiff's complaint.

         The ALJ's decision

         The ALJ found that Plaintiff suffers from the following severe, or vocationally significant, impairments: hypertensive vascular disease; other disorders of gastrointestinal system; affective disorders; anxiety disorders; loss of visual acuity. (Administrative Record (“AR”) at 13.) The ALJ found that, notwithstanding these impairments, Plaintiff has a residual functional capacity (RFC) for light work. (AR at 15.) In so finding, the ALJ gave “great weight” to the opinions of the Commissioner's non-examining consultants, Donna Sadler, M.D., and Lea Perritt Ph.D. (AR at 17-18 referring to AR at 96-101.)

         By definition, light work contemplates 6 hours of standing/walking per 8-hour workday (with sitting during the remaining 2 hours). Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *5. Light work requires “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” Id. at *5. Additionally, the ALJ found that Plaintiff has significant non-exertional physical and mental limitations. (AR at 15.)

         The ALJ denied Plaintiff's disability claim at the final step of the sequential evaluation process, finding that Plaintiff retains the ability to perform a significant number of light jobs in the national economy. (AR at 19-20.)

         Application of Appendix 2 rules in this case

         The ALJ cited Rule 202.11 of Appendix 2 of the regulations as a framework for decisionmaking. (AR at 19.) Rule 202.11 contemplates an individual with a maximum sustained work capacity limited to light work, who is closely approaching advanced age, has an education of limited or less, and has previous work experience of skilled or semiskilled - skills not transferable. Rule 202.11 directs an ultimate finding of “not disabled.” If Plaintiff had a maximum sustained work capability limited to sedentary work, Rule 201.10 would direct an ultimate finding of “disabled.” By definition, sedentary work contemplates 6 hours of sitting per 8-hour workday (with standing/walking during the remaining 2 hours). Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *5. Sedentary work requires “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” Id.

         Argument 5

         Plaintiff makes five arguments. The Court will consider his last argument first. Plaintiff argues that the ALJ's decision failed to give good reasons for discrediting the disabling medical opinions of his treating physician, Robert L. Bertram, D.O. (Doctor of Osteopathy). (Docket # 13 at 5-6.)

         In April 2017, Dr. Bertram signed off on a Medical Source Statement, which apparently was completed by Nurse Terani Robertson. Dr. Bertram diagnosed: osteoarthritis / low back pain (OA/LBP); diabetes mellitus type II (DMII); depression; vitamin B12 deficiency; peripheral artery disease (PAD); peripheral neuropathy; history of cerebrovascular accident (CVA); and status post hernia surgery. (AR at 778.) Dr. Bertram opined that, “considering [Plaintiff's] medical condition, ” in an 8-hour workday, Plaintiff can sit for a total of 3 hours, stand for a total of 2 hours, and walk for a total of 1 hour - less than an 8 hours of sitting, standing, and walking. (AR at 780.) Dr. Bertram opined that Plaintiff would likely be absent from work as a result of impairments or treatment more than four times a month. (AR at 782.) The vocational expert (VE) testified that these opinions, if accepted, would eliminate all full-time work and render Plaintiff disabled. (AR at 48-50.)

         The ALJ gave little weight to Dr. Bertram's disabling opinions because they were “not supported by his own treatment notes” and were “fully based on [Plaintiff's] subjective allegations.” (AR at 18.) Additionally, the ALJ discounted Dr. Bertram's osteoarthritis / low back pain (OA/LBP) diagnosis because the treatment notes indicate “T [thoracic] spine tenderness” on physical examination but such exams were conducted only when Plaintiff complained of spine pain, with no supporting x-ray, CT or MRI evidence. (AR at 18.) the ALJ discounted Dr. Bertram's peripheral neuropathy diagnosis because it was not supported by any clinical or objective testing such as EMG (electromyography) or NCV (nerve conduction velocity) tests. (AR at 18.)

         A treating physician's medical opinion is entitled to controlling weight only if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record.” 20 C.F.R. § 404.1527(c)(2). Dr. Bertram was not asked and did not indicate what specific medical findings supported his disabling opinions. “The mere diagnosis of [an impairment provides insufficient support for specific limitations because it] says nothing about the severity of the ...


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