Robert Bryant v. Carolyn W. Colvin

661 F. App'x 686
Court of Appeals for the Eleventh Circuit·Decided November 22, 2016·No. 15-15715·Unpublished·Cited by 1 cases

Opinion

PER CURIAM:

Claimant Robert Bryant appeals the district court’s order affirming the Commissioner of Social Security’s (“the Commissioner”) denial of his application for disability insurance benefits. On appeal, Bryant argues that the Administrative Law Judge (“ALJ”) violated the Social Security Regulations by taking expert testimony by telephone and by not providing adequate notice of such testimony. Bryant further argues that the ALJ’s rejection of his treating physician’s opinion was not supported by substantial evidence. After careful review, we affirm.

I. BACKGROUND

In October 2011, Bryant filed an application for disability insurance benefits with the Social Security Administration. Alleging a disability onset date of September 9, 2010, Bryant represented that he was disabled and unable to work because he suffers from knee and back injuries stemming from a fall from a ladder at his job as a service technician. He continued working until December 9, 2010, when he was terminated from his employment for other reasons. Bryant indicated that his right knee and back pain prevented him from participating in activities he used to enjoy.

The Commissioner denied Bryant’s application for benefits. At a subsequent hearing before an ALJ, Bryant testified that he stopped working because he injured his back after falling from a ladder at work. He filed a worker’s compensation lawsuit, but that had not yet been settled. He planned to have surgery once the pain got better and described the current pain level as an eight on a scale of one to ten. While he took medication for the pain, it did not help much. To assist with the pain, he used a TENS unit 1 every day and had had four nerve blocks and one neuro block. He also needed to lie down between two and four hours per day. As to daily activities, Bryant did not do any household chores, drive, or go' to the grocery store.

At the conclusion of Bryant’s testimony, the ALJ continued the hearing to obtain testimony from an orthopedic doctor regarding Bryant’s limitations. That same day, Bryant filed a motion to exclude expert testimony by any method other than *688 those provided for in the regulations: in person or by video conference. Prior to the supplemental hearing, the ALJ issued a notice to Dr. Allan Levine, requesting his testimony as a medical expert at Bryant’s supplemental hearing.

At the supplemental hearing held on May 29, 2013, Dr. Levine testified by phone. Bryant stipulated that Dr. Levine was a qualified medical expert; but objected to the method by which Dr. Levine would be providing testimony. The ALJ overruled the objection, noting that the regulation pertaining to telephonic testimony had changed, and he proceeded to question Dr. Levine. Dr. Levine pointed out that Bryant had worked past his alleged onset date of September 9, 2010, prompting Bryant to amend his disability onset date to December 9, 2010.

After asking Bryant a series of questions, Dr. Levine opined that Bryant had a medically determinable impairment of chronic' right knee pain, secondary to a partial tear of the lateral and medial meniscus. Dr. Levine noted that a progress note dated November 11, 2010, from Dr. Scott Atkins, the doctor who performed knee surgery on Bryant in October 2010, indicated that Bryant could return to work without restriction. Dr. Levine also noted that Bryant had chronic back pain, secondary to diagnosis of multi-level degenerative disc disease. However, Bryant’s knee and back pain did not meet or equal any of the listed impairments because there was no evidence showing an inability to effectively ambulate his knee, nor was there any evidence of a comprised nerve root or spinal cord.

The ALJ permitted Bryant’s attorney to question Dr. Levine, but Dr. Levine could not initially hear the questions. Bryant’s attorney expressed concern that it was difficult to cross-examine when the expert could not hear the questions. While the ALJ repeated Bryant’s attorney’s initial questions to the medical expert, Bryant’s attorney was eventually able to directly question Dr. Levine. The ALJ did not permit Bryant’s attorney to question Dr. Levine regarding how many hearings Dr. Levine had testified at, or whether he was an occupational therapist, on the basis that those questions were not relevant. Following the questions from Bryant’s attorney, Dr. Levine opined that Bryant could sit for six hours out of eight-hour day, stand for four hours in an eight-hour day but no more than 30 minutes at a time without a short break, and walk for four hours in an eight-hour day but no more than 40 minutes at a time without a short break.

At the conclusion of Dr. Levine’s testimony, the ALJ sought testimony from the vocational expert. The vocational expert explained that while Bryant could not perform his past relevant work—classified as medium, skilled work with heavy exertion—if he required a job that provided him á sit/stand option, there were other jobs Bryant could perform, such as a marker, a garment sorter, or a dowel inspector. When the ALJ added additional limitations, such as the ability to sit only two hours per day and walk or stand only one hour per day, the vocational expert stated that there would be no jobs that Bryant could perform.

Following the hearing, the ALJ issued a decision, concluding that Bryant was not disabled for purposes of disability insurance benefits. Specifically, upon review of the evidence, the ALJ concluded that Bryant suffered from multi-level degenerative disc disease of the lumbar spine and facet spondylosis (spinal degeneration), but determined that these impairments did not meet or equal any of the listed impairments in the Social Security regulations. The ALJ determined that Bryant could perform light work, not precluded by the *689 inability to stand more than 30 minutes at a time without a short break or the inability to walk more than 40 minutes at a time without a short break, and with restrictions on activities such as climbing ladders, ropes, or scaffolds, crouching, stooping, and bending, and exposure to' heavy machinery or dangerous equipment.

Because Bryant’s past relevant work as a HVAC service technician was classified as medium, skilled work that required heavy exertion, the ALJ concluded that Bryant could not perform his past relevant work. The ALJ also reviewed the medical evidence, including the opinions of Bryant’s treating physician at The Spine-Care Center, Dr. Wesley Spruill, who placed only one restriction on Bryant’s ability to work—that he could not lift more than 75 pounds—as well as the opinion of Bryant’s other treating physician, Dr. Perry Timberlake, who determined that Bryant was completely disabled and unable to work, and, finally, the opinion of the consulting orthopedist, Dr. Levine, who opined that Bryant could perform light work with a sit/stand option. The ALJ afforded significant weight to the opinion of Dr. Spruill, but rejected Dr. Timberlake’s opinion on the basis that it was inconsistent with the medical record and his own treatment notes. Based on Bryant’s age, education, and residual functional capacity, coupled with the vocational expert’s opinion that a significant number of jobs accommodating Bryant’s limitations existed in the national economy, the ALJ concluded that Bryant was not disabled. The Appeals Council denied Bryant’s request for review.

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Robert Bryant v. Carolyn W. Colvin, 661 F. App'x 686 (11th Cir. 2016).

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