Case 4:19-cv-00161-HBB Document 21 Filed 11/06/20 Page 1 of 19 PageID #: 1369
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF KENTUCKY
`OWENSBORO DIVISION
`CIVIL ACTION NO. 4:19-CV-00161-HBB
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`RAYMOND GROVES
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`VS.
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`ANDREW SAUL, COMMISSIONER
`SOCIAL SECURITY ADMINISTRATION
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`MEMORANDUM OPINION
`AND ORDER
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`BACKGROUND
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`PLAINTIFF
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`DEFENDANT
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`Before the Court is the complaint (DN 1) of Raymond Groves (APlaintiff@) seeking judicial
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`review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
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`Plaintiff (DN 14) and Defendant (DN 20) have filed a Fact and Law Summary. For the reasons
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`that follow, the final decision of the Commissioner is AFFIRMED, and judgment is GRANTED
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`for the Commissioner.
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`Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties have consented to the
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`undersigned United States Magistrate Judge conducting all further proceedings in this case,
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`including issuance of a memorandum opinion and entry of judgment, with direct review by the
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`Sixth Circuit Court of Appeals in the event an appeal is filed (DN 10). By Order entered April 8,
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`2020 (DN 11), the parties were notified that oral arguments would not be held unless a written
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`request therefor was filed and granted. No such request was filed.
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`1
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`Case 4:19-cv-00161-HBB Document 21 Filed 11/06/20 Page 2 of 19 PageID #: 1370
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`FINDINGS OF FACT
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`On March 17,2016, Plaintiff protectively filed an application for Disability Insurance
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`Benefits (Tr. 26, 157-63). Plaintiff alleged that he became disabled on November 4, 2015, as a
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`result of a noncancerous tumor on the left side of the brain; he underwent suboccipital surgery for
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`acoustic neuroma which resulted in hearing loss due to the removal of his left eardrum and all
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`nerves, including the balance nerve, on the left side of his head; he still has three brain tumors and
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`they are closely monitored every six months; at age 13 a tumor was removed from right front skull
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`which resulted in the right front forehead being reconstructed; he is easily winded and experiences
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`difficulty breathing which may be COPD; he has rheumatoid arthritis; he has high blood pressure;
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`he has Von Recklinghausen Disease type III; and he experiences headaches (Tr. 27, 72). On April
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`16, 2018, Administrative Law Judge John R. Price (AALJ@) conducted a hearing in Paducah,
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`Kentucky (Tr. 44-46). Plaintiff and his attorney, Christopher Rhoades, appeared in person (Id.).
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`Kenneth Boaz, an impartial vocational expert, testified by telephone during the hearing (Id.).1
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`In a decision dated September 10, 2018, the ALJ evaluated this adult disability claim
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`pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 26-
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`38). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since
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`November 4, 2015, the alleged onset date (Tr. 29). At the second step, the ALJ determined that
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`Plaintiff has the following severe impairments: hearing loss and headaches status-post acoustic
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`1 In contrast to the hearing transcript, the ALJ’s decision indicates he conducted a video hearing from Louisville,
`Kentucky (Tr. 27). The decision also indicates that Plaintiff and his attorney, Christopher Rhoads, participated
`from Madisonville, Kentucky (Id.). The decision indicates that Kenneth Boaz, an impartial vocational expert,
`participated by telephone (Id.). The Court merely notes the conflict between what is set forth in the hearing
`transcript and the ALJ’s decision.
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`2
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`neuroma resection; chronic obstructive pulmonary disease; degenerative disc disease; and
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`degenerative joint disease (Id.). The ALJ also determined that Plaintiff=s obesity is a Anon-severe@
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`impairment because there is no evidence of any specific or quantifiable impact on pulmonary,
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`musculoskeletal, endocrine, or cardiac functioning (Id.).
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`At the third step, the ALJ concluded that Plaintiff does not have an impairment or
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`combination of impairments that meets or medically equals one of the listed impairments in
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`Appendix 1 (Id.). At the fourth step, the ALJ found that Plaintiff has the residual functional
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`capacity (RFC) to perform light work except that he is limited to: lifting 20 pounds occasionally
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`and 10 pounds frequently; no ladders, ropes, and scaffolds; only occasional ramps and stairs;
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`occasional balancing, stooping, kneeling, crouching, and crawling; avoidance of concentrated
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`dust, gas, fumes, and other pulmonary irritants; avoidance of hazards, such as unprotected heights
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`and dangerous moving machinery; avoidance of bright light situations like outdoor sunlight;
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`avoidance of more than moderate level of noise; and needing an option to sit and stand in 30 minute
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`intervals throughout the workday and take a minute or two to change position from seated to
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`standing or vice versa (Tr. 30-31). Additionally, the ALJ relied on testimony from the vocational
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`expert to find that Plaintiff is unable to perform any past relevant work (Tr. 35).
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`The ALJ proceeded to the fifth step where he considered Plaintiff=s residual functional
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`capacity, age, education, and past work experience as well as testimony from the vocational expert
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`(Tr. 36-37). The ALJ found that Plaintiff is capable of performing a significant number of jobs
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`that exist in the national economy (Id.). Therefore, the ALJ concluded that Plaintiff has not been
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`under a Adisability,@ as defined in the Social Security Act, from November 4, 2015 through the
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`date of the decision (Tr. 37).
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`3
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`Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
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`156). The Appeals Council denied Plaintiff=s request for review (Tr. 1-4).
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`CONCLUSIONS OF LAW
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`Standard of Review
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`Review by the Court is limited to determining whether the findings set forth in the final
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`decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton
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`v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
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`680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
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`of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial evidence exists when
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`a reasonable mind could accept the evidence as adequate to support the challenged conclusion,
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`even if that evidence could support a decision the other way.@ Cotton, 2 F.3d at 695 (quoting
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`Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
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`case for substantial evidence, the Court Amay not try the case de novo, nor resolve conflicts in
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`evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human Servs., 964
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`F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
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`As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
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`ALJ=s decision (Tr. 1-4). At that point, the ALJ=s decision became the final decision of the
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`Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality
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`of the Commissioner’s decision). Thus, the Court will be reviewing the ALJ’s decision and the
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`evidence that was in the administrative record when the ALJ rendered the decision. 42 U.S.C. §
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`405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996);
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`Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
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`4
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`Case 4:19-cv-00161-HBB Document 21 Filed 11/06/20 Page 5 of 19 PageID #: 1373
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`The Commissioner’s Sequential Evaluation Process
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`The Social Security Act authorizes payment of Disability Insurance Benefits and
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`Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II
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`Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
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`Adisability@ is defined as an
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`[I]nability 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 twelve (12)
`months.
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`42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
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`416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
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`(6th Cir. 1990).
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`The Commissioner has promulgated regulations setting forth a five-step sequential
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`evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20
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`C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
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`1)
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`2)
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`3)
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`4)
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`Is the claimant engaged in substantial gainful activity?
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`the claimant have a medically determinable
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`impairment or combination of impairments that satisfies the
`duration requirement and significantly limits his or her
`ability to do basic work activities?
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`Does the claimant have an impairment that meets or
`medically equals the criteria of a listed impairment within
`Appendix 1?
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`Does the claimant have the residual functional capacity to
`return to his or her past relevant work?
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`5
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`5)
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`Does the claimant’s residual functional capacity, age,
`education, and past work experience allow him or her to
`perform a significant number of jobs in the national
`economy?
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`Here, the ALJ denied Plaintiff=s claim at the fifth step.
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`Prejudgment Remand
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`1. Arguments of the Parties
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`Plaintiff argues the case should be remanded, pursuant to sentence six of 42 U.S.C. §
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`405(g), for consideration of a single treatment note from Dr. James Carter Dodds dated December
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`13, 2018 (DN 14-1 PageID # 1338-39, citing Tr. 9-17). Plaintiff contends this “new” evidence
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`showing that ongoing treatment of his left knee ultimately resulted in a total knee replacement is
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`“material,” and there is “good cause” for not submitting it to the ALJ because it post-dates the
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`decision (Id.).
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`Defendant’s challenge is limited to whether the treatment note is “material” (DN 20 PageID
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`# 1365-67). Defendant asserts the treatment note is not “material” because, other than indicating
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`Plaintiff was a candidate for a left knee replacement, it contains evidence that is cumulative of the
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`objective and subjective evidence in the record that was fully considered by the ALJ (Id. citing Tr.
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`29-31, 33, 1109-11, 1124, 1126-27).
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`2. Discussion
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`“A district court’s authority to remand a case . . . is found in 42 U.S.C. § 405(g) . . .”
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`Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 482-83 (6th Cir. 2006). Under
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`sentence six of 42 U.S.C. § 405(g), the Court does not address the correctness of the administrative
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`decision. Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991), Hollon ex rel. Hollon v. Comm’r of
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`6
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`Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006). ARather, the court remands because new evidence
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`has come to light that was not available to the claimant at the time of the administrative proceeding
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`and the new evidence might have changed the outcome of the prior proceeding.@ Melkonyan,
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`501 U.S. at 98. The party seeking this type of remand has the burden of demonstrating that there
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`is “new evidence which is material and that there is good cause for the failure to incorporate such
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`evidence into the record in a prior proceeding[.]” 42 U.S.C. § 405(g); see also, Cline v. Comm’r
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`of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996); Faucher v. Sec’y of Health & Human Servs., 17
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`F.3d 171, 174-175 (6th Cir. 1994). Thus, the statute sets forth a three-factor test for determining
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`whether the Court should grant a pre-judgment remand. Faucher, 17 F.3d at 174.
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`The new evidence is a December 13, 2018 progress note prepared by Dr. Dodds, an
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`orthopedist, with Baptist Health Medical Group-Orthopedics (Tr. 9-17). While Plaintiff’s
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`argument addresses all three factors, Defendant limits his challenge to the second factor. 2
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`Therefore, the sole question to be resolved is whether Plaintiff has demonstrated the treatment note
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`is “material.”
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`Evidence is Amaterial@ only if there is “a reasonable probability that the Commissioner
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`would have reached a different disposition of the disability claim if presented with the new
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`evidence.” Ferguson, 628 F.3d at 276; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001);
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`2 Defendant’s silence as to the first and third factors is deemed a concession. Notwithstanding, the Court
`concludes the evidence is “new” because it did not exist at the time of the administrative proceeding. See
`Melkonyan, 501 U.S. at 98; Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990); Ferguson v. Comm’r of Soc. Sec.,
`628 F.3d 269, 276 (6th Cir. 2010); Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). “Good cause” is shown
`because the new evidence arises from continued medical treatment of the knee condition and was not generated
`merely for the purpose of attempting to prove Plaintiff’s disability. See Koulizos v. Sec’y of Health & Human
`Servs., No. 85-1654, 1986 WL 17488, at *2 (6th Cir. Aug. 19, 1986) (citing Wilson v. Sec’y of Health & Human
`Servs., 733 F.2d 1181 (6th Cir. 1984) and Willis v. Sec’y of Health & Human Servs., 727 F.2d 551 (6th Cir. 1984)).
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`7
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`Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). Evidence is not
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`considered “material” if it merely depicts an aggravation or deterioration in an existing condition
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`after the date of the ALJ’s decision. Sizemore, 865 F.2d at 712.
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`The only treatment note in the administrative record specifically addressing Plaintiff’s left
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`knee comes from Baptist Health Medical Group-Orthopedics and is dated June 21, 2017 (Tr. 1106-
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`12).3 Plaintiff’s symptoms included a mild aching pain in his left knee which he rated on that day
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`as a 5 on a 10-point severity scale; and a loss of motion and grinding aggravated by weight bearing
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`(Tr. 1106). Despite his complaints, Plaintiff indicated he had “tried nothing for the symptoms”
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`(Id.). Plaintiff exhibited an antalgic gait and the nurse practitioner’s examination revealed the
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`absence of erythema; normal sensation; mild swelling; “no effusion;” tenderness in the medial
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`joint line and pes anserinus; and a normal range of motion for extension but an abnormal range for
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`flexion (Tr. 1109). X-rays of Plaintiff’s left knee showed moderate patellofemoral and mild
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`lateral joint compartment degenerative arthritic change (Tr. 1110).4 The diagnostic assessment
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`was primary osteoarthritis of left knee, large joint arthrocentesis (Tr. 1111). The recommended
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`treatment plan involved an intra-articular steroid injection with progression of range of motion and
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`3 During the administrative hearing, on April 16, 2018, Plaintiff testified that he received treatment for his left knee
`during the summer of 2017 (Tr. 46, 56-57). But he did not testify about receiving any subsequent treatment for his
`left knee (Id.). Additionally, when Plaintiff filed his application, he provided a comprehensive list of medical
`conditions that limit his ability to work (Tr. 178). While the list identifies rheumatoid arthritis, it does not mention
`Plaintiff’s knees (Id.). Additionally, the medical evidence from Dr. Hardison and Baptist Health Medical Group,
`addressing the time frame May 2016 through October 2017, indicates Plaintiff made general complaints about cervical
`spine, shoulder, and knee pain and tenderness throughout his musculoskeletal system (see e.g., Tr. 775-77, 889-90,
`1109-11, 1124, 1126-27). The treating source comments indicate Plaintiff’s degenerative joint disease was
`controlled, examinations revealed some tenderness in his musculoskeletal system, and he had a normal range of motion
`(Id.).
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` 4
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` X-rays of Plaintiff’s right knee showed moderate tricompartmental osteoarthritic degenerative changes, greatest
`in the medial lateral joint compartments (Tr. 1110).
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`8
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`activity as tolerated based on pain, and a follow-up appointment in one month (Id.). The ALJ
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`relied on this medical evidence and Plaintiff’s testimony in making findings at steps two, three,
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`and four.5 At step four, the ALJ found that Plaintiff has the RFC to perform light work with
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`certain exertional,6 postural,7 and environmental limitations8 (Tr. 30-31, Finding No. 5). At step
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`four, the ALJ relied on the vocational expert’s testimony to find Plaintiff is not capable of returning
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`to his past relevant work9 (Tr. 35-36, Finding No. 6). At step five, the ALJ relied on the
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`vocational expert’s testimony to find, considering Plaintiff’s age, education, work experience, and
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`RFC, Plaintiff can make a successful adjustment to other work that exists in significant numbers
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`in the national economy (Tr. 36-37). The decision issued on September 10, 2018 (Tr. 26-38).
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`Contrary to Plaintiff’s assertion, the new medical evidence does not show he received a
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`total knee replacement on December 7, 2018, just three months after the ALJ’s unfavorable
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`decision (compare DN 14-1 PageID # 1338, with Tr. 9-17). Rather, it is a December 13, 2018
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`progress note prepared by Dr. Dodds, an orthopedist with Baptist Health Medical Group, that
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`5 At step two, the ALJ found Plaintiff’s degenerative joint disease is a “severe” impairment (Tr. 29, Finding No. 3).
`At step three, the ALJ determined the degenerative joint disease did not meet or medically equal Listing 1.02 (Tr.
`29, Finding No. 4).
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` 6
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` Specifically, the ALJ included “an option to sit and stand in 30-minute intervals throughout the workday and take
`a minute or two to change position from seated to standing or vice versa” (Tr. 31, Finding No. 5).
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` 7
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` Specifically, the ALJ included no climbing ladders, ropes, and scaffolds; occasional climbing ramps and stairs;
`and occasional balancing, stooping, kneeling, crouching, and crawling (Id.).
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` 8
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` Specifically, the ALJ included avoidance of concentrated dust, gas, fumes, and other pulmonary irritants;
`avoidance of hazards, such as unprotected heights and dangerous moving machinery; and avoidance of bright light
`situations like outdoor sunlight (Id.).
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` 9
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` In response to the ALJ’s hypothetical question setting forth all the limitations in the RFC finding, the vocational
`expert confirmed that the hypothetical individual would not be able to perform Plaintiff’s past relevant work (Tr. 65-
`66).
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`9
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`concludes Plaintiff is a good candidate for a total knee replacement (Tr. 9-17). Thus, the Court
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`cannot ascertain from this new evidence whether Plaintiff has undergone a total knee replacement
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`and, if so, when the surgery occurred.
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`The December 2018 progress note indicates Plaintiff was seen for a left knee follow up,
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`but it fails to indicate when Plaintiff was last seen (Tr. 9). It indicates Plaintiff “is ready to
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`schedule surgery” because he is experiencing pain with daily activities, is unhappy with the quality
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`of his life, and has tried NSAIDS, Visco, PT, HEP, activity modification, intra-articular steroid
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`injections without improvement (Id.). Further, it reports that Plaintiff exhibited an antalgic gait,
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`had normal left knee strength with diffuse tenderness, and had a range of motion that was -5 on
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`extension and 120 flexion (Tr. 13). It also reveals that Plaintiff’s left knee had a negative varus
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`and drawer (anterior and posterior), normal sensation, no swelling, no effusion, crepitation with
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`motion, and mild to moderate pain through the arc of motion (Tr. 13-14). X-rays of the left knee
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`revealed moderate to severe medial compartmental degenerative changes (Tr. 14). The progress
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`note sets forth a diagnostic assessment of primary osteoarthritis of the left knee and chronic pain
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`of the left knee (Tr. 14-15).
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`Some examination findings in the December 7, 2018 progress note are similar or the same
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`as examination findings in the June 21, 2017 treatment note (compare Tr. 1106-12, with Tr. 9-17).
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`But other examination findings and the x-rays referred to in the December 7, 2018 progress note
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`clearly show a deterioration in his condition since June 21, 2017 (compare Tr. 1106-12, with Tr.
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`13-14). As alluded to above, there is the absence of medical evidence in the record presenting a
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`longitudinal view of Plaintiff’ condition from June 21, 2017 through the date of the hearing and
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`the ALJ’s unfavorable decision on September 10, 2018. Moreover, the new evidence is not from
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`10
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`a long-term treating orthopedic physician who presents a longitudinal view of Plaintiff’s condition.
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`Thus, the new evidence which reflects Plaintiff’s deteriorated condition “is not relevant because
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`such evidence does not demonstrate the point in time that the disability itself began.” See
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`Sizemore, 865 F.2d at 712. For this reason, the Court concludes the “new” evidence is not
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`“material” to Plaintiff’s condition during the time adjudicated by the ALJ. Since the medical
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`evidence demonstrates Plaintiff’s condition has gotten worse, the appropriate remedy would be for
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`him to file a new claim for benefits alleging an onset date consistent with when the condition
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`aggravated to the point of constituting a disabling impairment. Id.
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`Residual Functional Capacity
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`1. Arguments of the Parties
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`Plaintiff asserts that substantial evidence does not support the ALJ’s failure to give “great
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`weight” to the opinion of Dr. Hardison, the treating physician (DN 14-1 PageID # 1332-34).
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`Plaintiff claims that Dr. Hardison indicated with specificity the number of days a week Plaintiff
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`experiences severe debilitating headaches from the brain tumors, his lifting restrictions, and the
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`frequency he should lie down or recline (Id. citing Ex. 21F). Plaintiff argues the ALJ failed to
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`give good reasons, based on the six factors in 20 C.F.R. § 404.11527(d)(2), for discounting the
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`limitations (Id.). Additionally, Plaintiff contends substantial evidence does not support the ALJ’s
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`finding that he can perform light work, which involves the ability to stand and/or walk six hours
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`of an eight-hour workday, considering his incapacitating headaches, degenerative joint disease,
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`and COPD (DN 14-1 PageID # 1334-37). Plaintiff asserts the ALJ’s summary of the evidence
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`including the frequency of complaints to the doctor about his headaches and dizziness; x-rays
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`showing degenerative arthritic changes in his shoulders; complaints of tenderness throughout his
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`musculoskeletal system; shortness of breath with exertion; abnormal flexion of his left knee; and
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`the November 2017 MRI showing bulging discs at L3 through S1 (Id. citing Tr. 32-35).
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`Defendant asserts that the ALJ properly gave Dr. Hardison’s vague opinions no weight
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`and, as to Dr. Hardison’s specific limitations, provided good reasons for discounting them based
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`on the six factors in 20 C.F.R. § 404.11527(d)(2) (DN 20 PageID # 1357-59, citing Tr. 35).
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`Defendant argues that Plaintiff does not point to any evidence the ALJ failed to consider in
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`concluding Plaintiff can perform a range of light work (DN 20 PageID # 1359-60). Defendant
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`contends the ALJ identified substantial evidence in the record supporting this finding and the Court
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`should decline Plaintiff’s invitation to reweigh the evidence (Id.).
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`1. Discussion
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`The residual functional capacity finding is the Administrative Law Judge=s ultimate
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`determination of what a claimant can still do despite his or her physical and mental limitations.
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`20 C.F.R. §§ 404.1545(a), 404.1546(c). The Administrative Law Judge makes this finding based
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`on a consideration of medical source statements and all other evidence in the case record. 20
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`C.F.R. §§ 404.1529, 404.1545(a)(3), 404.1546(c). Thus, in making the residual functional
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`capacity finding the Administrative Law Judge must necessarily evaluate the persuasiveness of the
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`medical source statements in the record and assess the claimant’s subjective allegations. 20
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`C.F.R. §§ 404.1520c, 404.1529(a).
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`As Plaintiff filed his application prior to March 27, 2017, the rule in 20 C.F.R. § 404.1527
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`apply to the ALJ’s assignment of weight to the medical opinions in the record. The regulation
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`requires Administrative Law Judges to evaluate every medical opinion in the record. 20 C.F.R.
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`§ 404.1527(c). The process of assigning weight to medical opinions in the record begins with a
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`determination whether to assign controlling weight to the medical opinion of the treating source.
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`20 C.F.R. § 404.1527(c). Treating-source opinions must be given “controlling weight” if two
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`conditions are met: (1) the opinion “is well-supported by medically acceptable clinical and
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`laboratory diagnostic techniques”; and (2) the opinion “is not inconsistent with the other
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`substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2); Gayheart v. Comm’r of
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`Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). If controlling weight is not assigned to the treating
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`source’s opinion, the Administrative Law Judge must consider the factors in paragraphs (c)(1)-(6)
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`of this section in deciding how much weight to accord the treating source opinion and provide
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`“good reasons” for discounting the weight given to the treating source. 20 C.F.R. §
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`404.1527(c)(2); Gayheart, 710 F.3d at 376. The Administrative Law Judge must also consider
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`the factors in paragraphs (c)(1)-(6) of this section in deciding how much weight to accord each of
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`the medical opinions in the record from non-treating and non-examining sources. 20 C.F.R. §
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`404.1527(c); Gayheart, 710 F.3d at 376.
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`Concerning the weight assigned to the opinions of Dr. Hardison, the pertinent part of the
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`decision reads:
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`Barry G. Hardison, M.D., stated on several occasions that the
`claimant was totally disabled from his conditions (Exs. 12F/20, 22;
`17F/9; 20F; 21F). Dr. Hardison’s opinion is given no weight as it
`is vague and fails to indicate any specific limitations resulting from
`the claimant’s impairments. Specifically, his opinion that the
`claimant was totally disabled is a determination reserved for the
`Commissioner of the Social Security Administration, and therefore,
`such opinion is given no weight as only the Commissioner can make
`such a determination.
`Dr. Hardison also indicated in a letter that the claimant could not lift
`more than 10 pounds on occasion, could not bend over without
`falling, would need to take unpredictable breaks throughout the day,
`would need to work in a dark and quiet room up to two days a week,
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`Case 4:19-cv-00161-HBB Document 21 Filed 11/06/20 Page 14 of 19 PageID #: 1382
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`and would need to lie down or recline a few hours a day, which
`would cause him to miss work a few days each month. He further
`stated that the claimant could not participate in light, medium, or
`heavy exertional work (Ex. 21F). Little weight is given to Dr.
`Hardison’s opinion, as his severe restrictions are not consistent with
`the record as a whole. Specifically, although the record shows the
`claimant has problems with breathing, headaches, and joint and back
`pain at times, numerous examinations show that he had normal
`respiratory findings, normal musculoskeletal findings, normal
`neurological findings, and normal pulmonary function testing and
`normal diagnostic imaging of his lungs. Additionally, the claimant
`had improvement of his headaches with use of Topomax, treated his
`complaints of headaches conservatively, and only went to the
`emergency room one time due to headaches despite his severe
`allegations. Furthermore, the claimant had improvement with his
`balance with therapy after his surgery, never had additional
`treatment for balance issues, and although he had hearing loss in his
`left ear, it was noted during multiple examinations that his hearing
`was normal at conversation level (Exs. 2F/53-54; 3F/3; 4F/6; 7F/1-
`3; 9F/11-13, 24, 28-33; 10F/1-3; 12F/20-21; 13F/3-4, 23; 15F/4-6;
`17F/1-2, 8-9, 12-13, 28-29; 22F/9-10). Accordingly, the record
`supports the finding that the claimant is capable of performing light
`exertional work with additional limitations.
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`(Tr. 35). Regarding the first paragraph in the above assessment, the ALJ appropriately gave Dr.
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`Hardison’s opinions no weight because they address an issue reserved to the Commissioner (Tr.
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`35 citing Tr. 889, 891, 1127, 1219). 20 C.F.R. § 404.1527(d).
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`As to the second paragraph in the above assessment, although the ALJ could have been
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`more explicit, it is readily apparent that the ALJ concluded Dr. Hardison’s opinion, dated March
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`29, 2018, was not entitled to “controlling weight” because it was inconsistent with other substantial
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`evidence in the record (Tr. 35, citing Tr. 1222-25). Further, contrary to Plaintiff’s assertion, the
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`ALJ provided “good reasons” that are based on the factors in paragraphs (c)(1)-(6) of this section.
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`404.1527(c); Gayheart, 710 F.3d at 376. In sum, the ALJ’s assignment of weight to the opinions
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`of Dr. Hardison are supported by substantial evidence and comport with applicable law.
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`The ALJ assigned great weight to the to the opinions of the non-examining state agency
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`medical consultants (Tr. 34). After reviewing the evidence in the record and the decision, the
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`Court concludes the ALJ’s assignment of weight is supported by substantial evidence in the record
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`and comports with applicable law. 404.1527(c); Gayheart, 710 F.3d at 376.
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`After reviewing the evidence in the record and the decision, the Court finds that the ALJ
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`articulated substantial evidence in the record that supported his finding the Plaintiff has the RFC
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`to perform light work with certain exertional,10 postural,11 and environmental limitations12 (Tr.
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`30-31 Finding No. 5). Further, the ALJ found from the medical evidence and Plaintiff’s testimony
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`that Plaintiff does not suffer pain and other symptoms to the extent he testified (Tr. 31-36). The
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`exertional, postural, and environmental limitations in the RFC address Plaintiff’s medical
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`conditions to the extent the ALJ found Plaintiff’s pain and other symptoms are supported by the
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`evidence in the record (Id.). In sum, the ALJ’s RFC findings are supported by substantial
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`evidence in the record and comport with applicable law.
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`10 Specifically, the ALJ included “an option to sit and stand in 30-minute intervals throughout the workday and
`take a minute or two to change position from seated to standing or vice versa” (Tr. 31, Finding No. 5).
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`11 Specifically, the ALJ included no climbing ladders, ropes, and scaffolds; occasional climbing ramps and stairs;
`and occasional balancing, stooping, kneeling, crouching, and crawling (Id.).
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`12 Specifically, the ALJ included avoidance of concentrated dust, gas, fumes, and other pulmonary irritants;
`avoidance of hazards, such as unprotected heights and dangerous moving machinery; and avoidance of bright light
`situations like outdoor sunlight (Id.).
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`Finding No. 10
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`1. Arguments of the Parties
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`Plaintiff contends substantial evidence does not support the ALJ’s finding that there are
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`jobs that exist in significant numbers in the national economy that he can perform (DN 14-1
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`PageID # 1334-36). Primarily Plaintiff argues the vocational expert relied on obsolete job
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`descriptions in the Dictionary of Occupational Titles in expressing his opinion (Id.). Additionally,
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`Plaintiff contends the number of jobs id