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Rainey v. Colvin

United States District Court, W.D. Tennessee, Western Division

June 20, 2018

ROBERT RAINEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING THE COMMISSIONER'S DECISION

          TU M. PHAM UNITED STATES MAGISTRATE JUDGE.

         Before the Court is plaintiff Robert Rainey's appeal from a final decision of the Commissioner of Social Security[1](“Commissioner”) denying his application for supplemental security income (SSI) under Title XVI of the Social Security Act (Act), 42 U.S.C. §§ 1381-1385. (ECF No. 1.) The parties have consented to the jurisdiction of the United States magistrate judge pursuant to 28 U.S.C. § 636(c). (ECF No. 12.) The case was reassigned to the undersigned on March 13, 2017. For the following reasons, the Commissioner's decision is affirmed.

         I. FINDINGS OF FACT

         Rainey applied for SSI on February 8, 2013, with an alleged onset date of May 21, 2011.[2] (R. 178-183.) The claim was denied initially and on reconsideration. (R. 93; 111.) At Rainey's request, an Administrative Law Judge (“ALJ”) held a hearing and issued a written decision. (R. 7-26.) In her written decision, the ALJ first found that Rainey had not engaged in substantial gainful activity since the application date. (R. 12.) Second, the ALJ determined that Rainey had the following severe impairments: chronic obstructive pulmonary disease (“COPD”); major depressive disorder; generalized anxiety disorder; and alcohol abuse. (R. 12.) In making this determination, the ALJ first recounted Rainey's testimony that he is unable to work because of persistent shortness of breath and back pain that is a 10 on a scale of 1 to 10. (R. 12.) Rainey testified that he was only taking an over-the-counter pain medication. He also testified that he could not walk farther than 30 to 50 feet; could not lift more than 5 or 6 pounds; and could not stand for more than 20 minutes at a time. (R. 12.)

         The ALJ then reviewed the objective medical evidence, to determine if it corroborated Rainey's subjective complaints. Specifically, Rainey saw Danielle Rae Deslauriers, A.P.N., a Nurse Practitioner at Lifespan Health (“Lifespan”), in February 2013, where he stated that he had fallen and hurt his back and left knee five weeks prior. (R. 13.) His low back and left knee were tender to palpation, but a lumbar spinal x-ray showed only “mild” degenerative changes, and the treatment notes from that day indicated that Rainey's primary purpose for seeking treatment was to gain support for his disability claim. (R. 13.) Specifically, Deslauriers stated that Rainey asked her to fill out and sign disability forms and, when she refused, became angry. (R. 13.) In April 2013, Rainey reported to a hospital emergency room alleging back and chest pain “all the time.” (R. 13.) His physical examination was “essentially normal.” (R. 13.) Rainey returned to Lifespan in July 2013, reporting intermittent abdominal pain that had lasted for a month, but was improving with Protonix. (R. 13.) A chest x-ray and abdominal CT scan were normal, as were a neurological exam and examination of his extremities. (R. 13.) Rainey also reported his back was sore after falling two days prior, but his gait was normal and he had no problems getting on and off the exam table. (R. 13.) He received an injection of pain medication. (R. 13.) On April 11, 2013, Steve Weaver, M.D., performed a State agency consultative physical exam; his findings were consistent with the Lifespan and emergency room records. (R. 13.) Rainey refused to comply with instructions to lift a 10-pound weight, claiming chest pain, and would not cooperate with gait testing. (R. 13.) Dr. Weaver found “mild” COPD and acknowledged that he was unsure of the level of effort and participation that Rainey exhibited during the exam. (R. 14.) Dr. Weaver opined that Rainey could lift or carry 20 pounds occasionally and 10 pounds frequently; frequently stand and walk; sit and reach continuously; and frequently stoop, kneel, and climb stairs. (R. 14.) Non-examining State agency medical consultants, Kanika Chaudhuri, M.D., and Nathaniel Robinson, M.D., reviewed the file on April 30, 2013, and August 7, 2013, respectively. (R. 14.) Both concluded that Rainey could perform light work with the occasional postural activities, but needed to avoid concentrated exposure to pulmonary irritants. (R. 14.)

         Rainey's attorney referred him to John B. Woods, M.D., for an April 17, 2014 exam. (R. 14.) Dr. Woods reported diffuse mild abdominal tenderness and opined that Rainey could not sustain even sedentary work because he could not lift or carry even 10 pounds, stand for even one hour a day, or sit for more than 30 minutes at a time. (R. 14.) Dr. Woods also opined that Rainey was permanently disabled due to severe COPD. Rainey received inpatient treatment in September 2014 after complaining of dizziness and right ear pain; his symptoms were attributed to alcohol withdrawal and chronic hepatitis C infection. (R. 14.) A physical exam was normal and a head CT and chest x-ray were negative at that time. (R. 14.) Rainey's attorney next referred him to Laura Baker, F.N.P., for a physical examination on June 15, 2015. (R. 14.) Rainey exhibited no neurological defects or apparent limitations in mental functioning. (R. 14.) Nurse Baker nonetheless reported reduced strength in the upper and lower extremities, back pain at palpation and slow and limping gait. (R. 15.) Volker Winkler, M.D., thereafter signed a medical source statement indicating inability to sustain even sedentary work. (R. 15.) The ALJ determined that the opinion from Dr. Woods, the assessment from Dr. Winkler, and the reported narrative findings from Nurse Baker were unsupported by the record as a whole. (R. 15.) Specifically, the ALJ noted that all were secured by Rainey's attorney for the purpose of supporting his disability claim, and all included purported findings that were directly contradicted by other objective evidence, including the various negative CT scans and x-rays and otherwise normal physical examinations. (R. 15.)

         The ALJ also noted that updated evidence warranted a departure from the prior decision's finding of severe physical impairments of degenerative arthritis of the knees and lumbar spine, and hearing loss, in addition to COPD. (R. 15.) Specifically, the ALJ noted that Rainey exhibited no difficulty hearing normal conversational tones at both Dr. Weaver's physical examination and at a psychological examination conducted by Melissa Greer, M.S., and R. Scott Beebe, Ph.D., in September 2013. (R. 15.) Rainey also exhibited no difficulty hearing at the video hearing before the ALJ. Based on this evidence, the ALJ determined that a severe impairment of hearing loss was not supported. (R. 15.) The ALJ also evaluated the updated evidence in relation to Rainey's previous determination of a severe musculoskeletal impairment of the lumbar spine or knees. (R. 15.) A February 2013 x-ray revealed mild degenerative changes. (R. 15.) In addition, Rainey mainly complained of chest or abdominal pain, with only residual back pain. (R. 15.) And, his gait and mobility were mostly normal, as were his musculoskeletal and neurological exams in Septemer 2014. (R. 16.) Thus, the credible medical reports “consistently show normal gait, station, strength, reflexes, sensation, and pulses, ” and would “not reasonably support finding any musculoskeletal impairment that significantly limits basic work related functioning on other than a transient basis not close to a duration of 12 months.” (R. 16.)

         Likewise, the ALJ determined that the updated evidence did not support that previous finding of severe mental impairments, including borderline intellectual functioning (BIF) and a learning disorder with moderate mental functional limitations. (R. 16.) Specifically, Rainey's attorney referred him to David Pickering, Ph.D., for a psychological examination on February 5, 2014. (R. 16.) Dr. Pickering recorded an IQ score of 77, and noted that Rainey was functionally illiterate and had marked limitations in abilities to concentrate, work with others, perform without an unreasonable number or length of breaks, respond to changes in work settings or procedures, or behave in an emotionally stable manner. (R. 16.) The ALJ determined that Dr. Pickering's findings were as “unsupported as the findings and assessment opinions from the physical exams that the claimant's attorney referred him to” and accordingly afforded them no weight. (R. 16.) The ALJ also noted that Rainey “does not receive mental health treatment[;]” and that the Lifespan and hospital records indicate no significant mental functional limitations other than those attributable to “continuous” alcohol abuse. (R. 16.) Notably, Dr. Weaver described him as exhibiting apparently normal intellectual functioning, as did Ms. Greer and Dr. Beebe. (R. 16.) Furthermore, non-examining State agency psychological consultant Andrew Phay, Ph.D., reviewed the file in March 2013, and concluded that the updated evidence was strong enough to depart from the prior ALJ findings regarding Rainey's mental impairment. (R. 17.) The ALJ stated that the “updated evidence supports the general limitations as previously found but not the combination of impairments as previously specified.” (R. 17.) Specifically, the updated evidence supported a finding of chronic depression with associated anxiety in the context of alcohol abuse, but not a BIF and learning disorder. Thus, the ALJ determined that the evidence supported a severe combination of mental impairments that result in moderate limitations, but did not include BIF or a learning disorder, and the only severe physical impairment supported by the updated record as a whole was COPD. (R. 17.)

         Third, the ALJ determined that Rainey did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 17.) The ALJ also determined that Rainey retained the residual functional capacity (“RFC”) to:

Perform light work as defined in 20 CFR 414.967(b) except: occasional postural activities (such as climbing, balancing, stooping, kneeling, crouching and crawling); and avoid concentrated exposure to pulmonary irritants; with mental functional ability to understand, remember and carry out simple tasks, maintain concentration, persistence and pace with such tasks with normal breaks spread throughout the day, interact frequently with supervisors and coworkers and occasionally with the public, and adapt to routine changes in workplace.

(R. 18.) The ALJ noted that Rainey's testimony - including that he is unable to work because of persistent shortness of breath, and that his back pain is constantly a 10 out of 10 - was refuted by the weight of the objective evidence. (R. 19.) Accordingly, while Rainey's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Rainey's statements concerning the intensity, persistence and limiting effects of those symptoms were not credible. (R. 19.) The ALJ also noted that this RFC determination accounted for the updated evidence as to Rainey's physical and mental limitations. (R. 19.)

         Fourth, the ALJ determined that Rainey could not perform any past relevant work. (R. 19.) Finally, the ALJ determined that, considering Rainey's age, education, work experience, and RFC, jobs existed in significant numbers in the national economy which he could perform. (R. 20.) In making this determination, the ALJ utilized a vocational expert (“VE”), who opined that, given the RFC finding, Rainey would be able to perform unskilled occupations with a light exertional requirement such as an assembly press operator, production assembler, and hand packer/inspector. (R. 20.) Thus, the ALJ found that Rainey was not disabled. (R. 21.) The Social Security Administration's (“SSA”) Appeals Council denied Rainey's request for review, making the ALJ's decision the final decision of the Commissioner. (R. 1.)

         Rainey filed the instant action on October 7, 2016. (ECF No. 1.) Rainey first argues that the ALJ erred in finding that Rainey no longer suffered from degenerative arthritis of the knees and lumbar spine at a severe impairment level. (ECF No. 24 at 14.) Rainey also argues that the ALJ's RFC determination that Rainey could perform “light” level work with no mental limitation is not supported by substantial evidence. (Id. at 17.)

         II. ...


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