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Turner v. Commissioner of Social Security

United States District Court, D. Vermont

June 27, 2016


          OPINION AND ORDER (DOCS. 14, 20)

          Geoffrey W. Crawford, United States District Court Judge.

         Plaintiff Richard A. Turner brings this action under 42 U.S.C. § 405(g), requesting review and remand of the decision of the Commissioner of Social Security denying his application for a period of disability and disability insurance benefits (DIB) and for supplemental security income (SSI). (Doc. 4.) Turner has filed a motion seeking remand for calculation of benefits or, alternatively, reversal and remand for further proceedings. (Doc. 14.) The Commissioner has filed a motion to affirm. (Doc. 20.) For the reasons stated below, Turner's motion is GRANTED IN PART, and the Commissioner's motion is DENIED.


         Turner was 47 years old on his alleged disability onset date of August 13, 2010. On that date he was riding his motorcycle and was involved in a collision with a car; his injuries included an injury to the head. (See AR 36-37.) He did not complete his secondary education, and testified that he cannot read, write, or do math. (AR 36.)[1] He lives with his wife Darlene Turner, who filled out the benefits forms and correspondence related to Turner's application. (See AR 114, 215, 225.)[2] Prior to the alleged disability period, Turner was self-employed in the business of repairing car transmissions. (AR 39-40.)

         At the January 21, 2014 administrative hearing, Turner testified that the August 13, 2010 accident "really took a toll" on his body. (AR 38.) He testified to pain in his shoulder blade, stiffness turning his head, "tremendous" pain in his neck, and "[w]icked headaches" every day since the August 13, 2010 collision. (AR 43.) He further testified that his arms and fingertips are numb, that he feels dizzy every day (AR 44), and that he has had trouble with his memory since the accident (AR 46). He described his mood since the collision as bad, including anger, frustration with his limitations, and frustration with his treatment providers. (AR 45.)

         Turner testified that on an average day he sleeps about fifteen hours. (AR 43.) He stated that he does not have any hobbies, does not socialize with anyone, and that household tasks like doing dishes are difficult because he cannot remain standing for more than five or ten minutes. (AR 46-47) He said he cannot remain sitting because it causes numbness from the waist down, and that he is unable to lift things-like a jug of milk-because of the numbness in his hands. (AR47.) He reported smoking less than one pack of cigarettes per day. (AR 539.) He is able to drive only a "[v]ery, very, little bit" because his balance is compromised and if he drives it feels "like everything's, like, going over to the left." (AR 48.)[3] Turner also suffers from chronic obstructive pulmonary disease (COPD), diabetes, and hypertension. (See AR 539.)

         On June 7, 2011, Turner protectively filed applications for a period of disability insurance and disability insurance benefits, and for supplemental security income. (AR 169, 173.) Those applications were denied initially (AR 59-76), and on reconsideration (AR 77-106), and Turner filed a timely request for an administrative hearing on October 1, 2012 (AR 124-25). On October 25, 2012, before the administrative hearing was held, Turner was involved in a second motor vehicle accident, resulting in injuries to his left shoulder and arm, and aggravating his neck pain. (AR 49.) Administrative Law Judge (ALJ) Thomas Merrill conducted the administrative hearing on January 21, 2014. (AR 31-58.) Turner appeared and testified, and was represented by his attorney, Mitchell Pearl. Vocational Expert (VE) James Parker also testified at the hearing.

         On February 27, 2014, the ALJ issued a decision finding that Turner was not disabled under the Social Security Act from his alleged onset date of August 13, 2010 through the date of the decision. (AR 13-25.) On or about April 23, 2014, Turner requested review with the Appeals Council. (AR 8-9; 250-54.) On or about January 26, 2015, while the appeal was pending, Turner filed a request that the Appeals Council consider new evidence regarding his recent diagnosis of tongue cancer and scheduled surgery for partial removal of his tongue. (AR 255-56.) In a decision dated March 10, 2015, the Appeals Council declined to consider the additional evidence, reasoning that it did not meet the criteria for consideration under 20 C.F.R. § 405.401(c). (AR 2.) The Appeals Council denied Turner's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-4.) Turner filed his Complaint in this action on April 2, 2015. (Doc. 4.)

         The ALJ's February 27, 2014 Decision

         The Commissioner uses a five-step sequential process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam).

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him [per se] disabled. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform.

Id. (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (alterations in original)); see 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proving his case at steps one through four. McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). At step five, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).

         Employing that sequential analysis, the ALJ first determined that Turner had not engaged in substantial gainful activity since his alleged disability onset date of August 13, 2010. (AR 15.) At step two, the ALJ found that Turner had the following severe impairments: degenerative disc disease, spine disorder, COPD, and intracranial injury/concussion (mild). (AR 15.) At step three, the ALJ considered Listing 1.04 (disorders of the spine), Listing 3.02 (chronic pulmonary insufficiency), and Listing 11.04 (central nervous system vascular accident), and concluded that none of Turner's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 16-17.)

         Next, the ALJ determined that Turner had the residual functional capacity (RFC) to perform "light work" as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except as follows:

[Turner] can lift and carry up to 10 pounds on a frequent basis. He can sit and stand and walk for 6 hours in an 8-hour workday. He can occasionally push and pull with the bilateral upper extremities. He can occasionally climb ladders, frequently stoop and crouch, and perform the remaining postural activities on an unlimited basis. He can occasionally reach overhead bilaterally. He should avoid concentrated exposure to respiratory irritants.

(AR 17.) The ALJ found that Turner had no past relevant work. (AR 24.) The ALJ further found that Turner has a "limited education" as defined under 20 C.F.R. §§ 404.1564(b)(3) and 416.964(b)(3), but that he is able to communicate in English. (AR 24.) Based on those findings, the testimony of the VE, and Turner's RFC, the ALJ determined that Turner could perform jobs existing in significant numbers in the national economy, including the following representative occupations: small product assembler, price marker, and gate guard. (AR 24-25.) The ALJ concluded that Turner was not under a disability, as defined in the Social Security Act, from the alleged onset date of August 13, 2010 through the date of the decision. (AR 25.)

         Standard of Review

         The Social Security Act defines the term "disability" in pertinent part as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A person will be found disabled only upon a determination that his "impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A).

         In considering the Commissioner's disability decision, the court conducts '"a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied.'" Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)); see also 42 U.S.C. § 405(g). "Substantial evidence means 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566 F.3d at 305 (quoting Consol. Edison Co. of N.Y. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938)). The "substantial evidence" standard is even more deferential than the "clearly erroneous" standard; facts found by the ALJ can be rejected "only if a reasonable factfinder would have to conclude otherwise?' Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)). The court is mindful that the Social Security Act is "a remedial statute to be broadly construed and liberally applied." Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).


         Turner claims that the ALJ erred in three ways. First, Turner asserts that the ALJ failed to give adequate weight to the opinion of his treating physician, Dr. Megan Greenleaf. Second, he argues that the ALJ improperly devalued his credibility. Third, he contends that the ALJ's findings at step five are contrary to the evidence of his illiteracy. Turner also claims that the Appeals Council erred in excluding his additional documents regarding the diagnosis and treatment of his cancer. The Commissioner opposes each of those claims.

         I. Analysis of the Medical Opinions

         Turner contends that the ALJ arrived at an inaccurate determination of his RFC by failing to give controlling weight to the opinion of his treating physician, Dr. Greenleaf Turner also argues that the ALJ failed to properly assess the regulatory factors in determining how much weight to give to Dr. Greenleaf s opinions.

         Dr. Greenleaf began treating Turner on October 8, 2013. (AR 538.) At a "get acquainted visit" with her, Turner reported decreased energy, poor sleep, hypertension, diabetes, and pain, with associated headache, upper extremity weakness, and impaired memory and vision. (Id.) He further reported that he was extremely frustrated by a lack of any unifying diagnosis from physicians he had seen previously. (Id.)

         It appears that, by the time Dr. Greenleaf completed her treatment notes from Turner's October 8, 2013 visit, she had received at least some of Turner's medical records, dating from November 2009 through August 2013. (See AR 537.) She remarked that Turner had undergone "thorough evaluations at [Dartmouth Hitchcock Medical Center] by Neurology, " and that he had seen a physical therapist and spine specialists. (AR 538.) She noted that an August 4, 2012 MRI of Turner's cervical spine had revealed "right-sided disc bulge with facet hypertrophy (no pathology on left)." (AR 538-39.) Dr. Greenleaf also reviewed a copy of a report of a CT scan of Turner's brain, which came back normal. (AR538.)

         Dr. Greenleaf noted: fatigue, decreased taste or smell due to severe leukoplakia, [4]difficulty swallowing, back pain, arm weakness, joint pain and stiffness, decreased range of motion, feeling of instability, and limitations of daily activities. (AR 539.) She also noted headaches, numbness, tingling, weakness, dizziness, coordination or balance problems, disequilibrium, easily distracted, and decreased memory. (Id.) Also at the October 8, 2013 visit, Dr. Greenleaf performed a physical examination. (AR 540.) She found, among other things, positive Romberg sign. (Id.)[5]

         Assessing Turner's chronic pain due to trauma, Dr. Greenleaf remarked that the limited prior imaging she had at that time showed "no anatomic explanation for the intermittent left arm numbness, tingling, and weakness that would be amenable to surgical intervention." (AR 541.) However, based on her examination, Dr. Greenleaf found that Turner had "significant malalignment of his scapulae and thoracic spine, " and she suspected that he had "intermittent nerve impingement due to muscle spasm." (Id.) She concluded that Turner's thoracic pain, as well as the "snapping" and pain in his right neck, were "from chronic malalignment and resultant ligament and muscle shortening." (Id.) Dr. Greenleaf advised Turner that regaining his strength and flexibility could only be achieved through intensive rehabilitation therapy to retrain his muscles. (Id.) Turner stated, however, that he was not interested in physical therapy or occupational therapy programs. (Id.)

         At a November 15, 2013 follow-up visit and physical examination with Dr. Greenleaf, Turner offered additional details regarding some of his symptoms. (AR 543-44.) Regarding cognitive function, she noted that Turner recalled his past history and had no impairment of concentration. (Id.) She found his thought processes and cognitive function to be "concrete." (Id.) As to Turner's musculoskeletal system, she noted "[p]alpable muscle spasm along right upper scapula" and "[m]uscular atrophy medial to right scapula." (Id.) Regarding Turner's chronic pain, Dr. Greenleaf recommended an evaluation for a potential "trigger point injection, " which she concluded "could lead to muscle relaxation and allow for strengthening through physical therapy." (Id.)

         On January 13, 2014, Dr. Greenleaf completed a Medical Source Statement (MSS) of Ability to do Work-Related Activities. (AR 546-51.) She stated that Turner could only occasionally lift or carry up to 10 pounds, and could never lift or carry more than that. (AR 546.) She noted that testing of Turner's strength was limited "due to pain and apprehension with minimal resistance, " but that Turner had "known neural foraminal stenosis of cervical spine." (Id.) Dr. Greenleaf indicated that Turner could sit, stand, or walk for no more than 30 minutes at a time, and that in an eight-hour workday he could sit for a total of four hours, stand for a total of two hours, and walk for a total of two hours. (AR 547.) In support of those conclusions, Dr. Greenleaf noted that Turner had asymmetric truncal alignment and that he was unable to maintain one position due to muscular spasm and atrophy. (Id.)

         Regarding use of hands, Dr. Greenleaf noted that Turner is right-handed, and that he can only occasionally reach, handle, finger, feel, push, or pull with his right hand. (AR 548.) She indicated that he could never perform those activities with his left hand. (Id.) Dr. Greenleaf s findings supporting those conclusions were that Turner's left-hand grip is weaker than his right and that he has "subjective left-sided pain, numbness, tingling." (Id.) She also noted, however, that Turner's imaging showed "more right-sided pathology, as does his examination." (Id.) Dr. Greenleaf further reported that Turner could continuously use both feet to operate foot controls. (Id.) With respect to postural activities, Dr. Greenleaf noted that Turner had traumatic labyrinthine disorder, and that he could therefore never climb stairs, ramps, ladders, or scaffolds, and could never balance, stoop, kneel, crouch, or crawl. (AR 549.)[6]

         Regarding environmental limitations, Dr. Greenleaf stated that Turner could never tolerate unprotected heights due to labyrinthine disorder. (AR 550.) She also stated that Turner's memory loss and cognitive impairment meant he could never be exposed to moving mechanical parts or operating a motor vehicle. (Id.) However, Dr. Greenleaf reported that Turner could occasionally be exposed to humidity and wetness, dust, odors, fumes, and irritants, cold, heat, and vibrations. (Id.) Dr. Greenleaf did not assess Turner as being unable to participate in any representational physical activities, such as shopping, walking, preparing meals, and handling paper files. (AR 551.) Finally, Dr. Greenleaf remarked that Turner "[d]emonstrates significant fixation on his accidents. I did not know him prior to [motor vehicle accidents], but this could certainly be a result of traumatic brain injury." (Id.)

         ALJ Merrill gave Dr. Greenleaf s January 2014 MSS only "limited weight." (AR 23.) The ALJ remarked that Dr. Greenleaf had only a "minimal treating relationship" with Turner. (Id.) The ALJ also found Dr. Greenleaf s opinion regarding Turner's functioning prior to the beginning of treatment to be "speculative, as it is not clear that she reviewed his treatment notes instead of relying upon his own reports." (Id.) And, according to the ALJ, Dr. Greenleaf s opinion was not entirely supported by her own treatment notes, since her opinion about Turner's ability to sit, stand, or walk was based on Turner's "muscular spasm and atrophy, " but the only clinical record to mention atrophy was Dr. Greenleaf s November 15, 2013 examination. (Id.) The ALJ also noted Turner's lack of exercise despite recommendations, and consistent refusal to participate in physical or occupational therapy. (Id.) Finally, the ALJ remarked that clinical examinations documenting decreased grip strength showed only mild deficits and nothing that would render Turner unable to use his left upper extremity for any task. (AR 23-24.)

         Under the treating-physician rule, "the opinion of a claimant's treating physician as to the nature and severity of the impairment is given 'controlling weight' so long as it 'is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (alteration in original) (quoting 20 C.F.R. § 404.1527(c)(2)). Even when a treating physician's opinion is not given controlling weight, it is still entitled to some weight because treating physicians are "likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence" 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

         If a treating physician's opinion is not given controlling weight, the weight to be given the opinion depends on several factors: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the relevant evidence supporting the opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is of a specialist; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). The Commissioner is required to give "good reasons" for the weight given to a treating source's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

         Here, the record indicates that Dr. Greenleaf examined Turner on only two occasions in the fall of 2013 before completing her January 2014 MSS. That limited treating relationship over a short period of time is a sufficient basis to give Dr. Greenleaf s opinion less than controlling weight. See 20 C.F.R. §§ 404.1527(c)(2)(f), 416.927(c)(2)(i) ("Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source."); Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam) (opinion of physician who had examined claimant only "once or twice" was not entitled to the extra weight of that of a "treating physician"); Rye v. Colvin, No. 2:14-cv-170, 2016 WL 632242, at *7 (D. Vt. Feb. 17, 2016) (physician who examined claimant on only two occasions over a one-month period was not a "treating source"; ALJ did not err in giving less than controlling weight to physician's opinions).

         Turner does not dispute that Dr. Greenleaf started treating him later in the overall course of his post-accident treatment, but he contends that that timing "actually aided her in developing the kind of 'longitudinal picture' of Plaintiff s impairment that is contemplated by 20 C.F.R. § 404.1527(c)(2)(i)." (Doc. 14 at 20.) Turner supplies no support for that proposition. Dr. Greenleaf may have had the benefit of reviewing some of Turner's medical history when she started treating him in October 2013, but the "longitudinal picture" that the regulations identify comes from the treating ...

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