Warner v. Social Security

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Warner v. Comm’r of Social Security No. 03-1641 ELECTRONIC CITATION: 2004 FED App. 0214P (6th Cir.) File Name: 04a0214p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ON BRIEF: Kerry Spencer Johnson, WEISBERG & FOR THE SIXTH CIRCUIT WALKON, Southfield, Michigan, for Appellant. David _________________ Skidmore, SOCIAL SECURITY ADMINISTRATION, Chicago, Illinois, for Appellee. GARY WARNER, X - _________________ Plaintiff-Appellant, - OPINION - No. 03-1641 v. _________________ - > , BOYCE F. MARTIN, JR., Circuit Judge. Gary Warner COMMISSIONER OF SOCIAL - appeals the district court’s judgment affirming the SECURITY, - Commissioner of Social Security’s denial of social security Defendant-Appellee. - benefits. For the reasons that follow, we AFFIRM the - judgment of the district court. N Appeal from the United States District Court I. for the Eastern District of Michigan at Flint. Warner, who has a twelfth-grade education and has earned No. 01-40316—Paul V. Gadola, District Judge. a high school equivalency diploma, worked as a production worker for Robinson Industries. In that capacity, Warner Submitted: June 8, 2004 carved plastic parts and was required regularly to lift between five and seventy-five pounds. On April 30, 1999, Warner Decided and Filed: July 8, 2004 applied for disability insurance benefits under Title II and XVI of the Social Security Act, claiming that he became Before: MARTIN and SUTTON, Circuit Judges; QUIST, disabled as of February 12, 1998, as a result of carpal tunnel District Judge.* syndrome. Applying the sequential review process, the administrative law judge found that although Warner had a severe impairment, he was not disabled because he retained the ability to perform past relevant work as a retail sales clerk. Notably, the administrative law judge significantly discounted the medical opinion of Warner’s treating physician, Dr. Craig * R. Sonke, who had diagnosed Warner with bilateral carpal The Honorable Gordon J. Quist, United States District Judge for the W estern District of Michigan, sitting by designation. tunnel syndrome in 1995. Dr. Sonke noted that Warner could

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lift up to five pounds regularly, could sit up to four hours at if the agency fully credited Warner’s assessment of his pain a time, could stand or walk up to two hours per day in an symptoms, then Warner would be unable to perform any of eight-hour day and that Warner’s overall endurance was the thousands of jobs mentioned. Based on the credibility affected by his chronic pain such that he would need two determinations and this testimony, the administrative law hours rest per eight-hour work day. Dr. Sonke concluded that judge concluded that Warner was not disabled because he Warner “is not capable of working an 8 hour day, 5 days a retained the residual functional capacity to perform past week for any type of job secondary to his chronic pain.” The relevant work in retail sales. Warner appealed to the Appeals administrative law judge found, however, that the other Council, which denied review, making the administrative law medical evidence and Warner’s own testimony did not judge’s denial of disability insurance benefits the final support Dr. Sonke’s determination that Warner’s carpal decision of the Social Security Administration. tunnel syndrome affected his walking and standing ability. The administrative law judge also rejected Dr. Sonke’s Thereafter, Warner sought review of the Administration’s finding that Warner could lift only up to five pounds on a decision in the United States District Court for the Eastern regular basis. District of Michigan. The magistrate issued a report recommending the reversal of the denial of disability Moreover, the administrative law judge found Warner’s insurance benefits. The magistrate found that the testimony regarding his alleged chronic pain only partially Administration erred in finding Warner only partially credible credible. The administrative law judge then posed a because there was evidence in the record indicating that hypothetical situation to the vocational expert to determine Warner took medication prescribed to alleviate pain whether Warner retained the residual functional capacity to symptoms. Crediting the objections of the Administration, perform his past relevant work or other work existing in the district court concluded otherwise and held that significant numbers in the economy. The administrative law substantial evidence supported the Administration’s denial of judge listed the following constraints in the first hypothetical: disability benefits. This timely appeal followed. inability to repeatedly grip or grasp with hands; ability to lift up to twenty pounds occasionally and up to ten pounds II. frequently; ability to stand, walk, or sit up to six hours in an eight-hour workday. These constraints were consistent with “This Court must affirm the Commissioner’s conclusions the conclusions of the state disability determination evaluator absent a determination that the Commissioner has failed to who completed Warner’s residual functional capacity apply the correct legal standards or has made findings of fact assessment, Dr. John R. Bartone. Considering these unsupported by substantial evidence in the record.” Walters constraints, the vocational expert testified that Warner could v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). perform his past relevant work in retail sales. Substantial evidence exists when a “reasonable mind might accept” the relevant evidence “as adequate to support a The administrative law judge then asked another conclusion.” Kirk v. Sec. of Health & Human Servs., 667 hypothetical question reducing the amount of weight that F.2d 524, 535 (6th Cir. 1981) (internal quotation marks Warner could lift or carry to ten pounds occasionally and five omitted). As long as substantial evidence supports the pounds frequently. The vocational expert testified that with Commissioner’s decision, we must defer to it, “‘even if there those restrictions there existed thousands of jobs that Warner is substantial evidence in the record that would have could perform. The vocational expert testified, however, that supported an opposite conclusion . . . .’” Wright v. No. 03-1641 Warner v. Comm’r of Social Security 5 6 Warner v. Comm’r of Social Security No. 03-1641

Massanari, 321 F.3d 611, 614 (6th Cir. 2003) (quoting Key v. regularly and his conclusion regarding Warner’s walking and Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). standing limitations. We conclude that it was proper for the administrative law judge to disregard these conclusions. Administrative law judges employ a five-step sequential inquiry to determine whether a claimant is disabled within the First, we conclude that substantial evidence supports the meaning of the Social Security Act. Jones v. Comm’r of Soc. Commissioner’s decision to disregard the conclusion of Dr. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The claimant bears Sonke regarding the limits on the amount of weight that the burden of proof through the first four steps of the inquiry, Warner could lift regularly. As the magistrate noted, Dr. at which point the burden shifts to the Commissioner to Sonke’s conclusion regarding the amount of weight that “identify a significant number of jobs in the economy that Warner could lift regularly appears to be based not upon his accommodate the claimant’s residual functional capacity own medical conclusion, but upon the conclusion of a . . . .” Id. In this case, the administrative law judge different doctor, as well as Warner’s own assessment of his determined at step four of the inquiry that Warner was not weight-lifting limitations. Moreover, that Warner could lift disabled within the meaning of the act because he could regularly up to ten pounds is consistent with Warner’s own perform his past relevant work in retail sales despite his testimony regarding his ability to perform household impairment. See 20 C.F.R. § 404.1520(a)(4)(iv) (describing activities. step four of the sequential review process). Thus, our review is limited to determining whether substantial evidence Second, the Commissioner properly rejected Dr. Sonke’s supports the Commissioner’s decision that Warner could conclusion that Warner could stand or walk for no more than perform his past relevant work as a retail sales clerk. See two hours in an eight-hour workday as it was inconsistent Walters, 127 F.3d at 529. with the substantial evidence in the record indicating otherwise. See 20 C.F.R. § 404.1527(d)(2) (noting that A. treating physicians’ opinions are given controlling weight when they are “not inconsistent with the other substantial Warner argues that the administrative law judge erred in evidence”). Dr. Sonke’s conclusion regarding Warner’s failing to defer wholly to the opinions of his treating walking and standing abilities was not based upon objective physician, Dr. Sonke. Generally, the opinions of treating medical evidence, as the record contains no such evidence physicians are given substantial, if not controlling, deference. indicating that Walker has an impairment to his lower See King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); 20 extremities or that his carpal tunnel syndrome affected his C.F.R. § 404.1527(d)(2). Treating physicians’ opinions are walking and standing abilities. Moreover, it is contrary to the only given such deference when supported by objective testimony of Warner himself, indicating that his carpal tunnel medical evidence. Jones, 336 F.3d at 477. “The syndrome did not typically affect his ability to stand and walk determination of disability is [ultimately] the prerogative of and that the reason that he filed for disability benefits was the the [Commissioner], not the treating physician.” Harris v. chronic pain in his hands. Furthermore, the record contains Heckler, 756 F.2d 431, 435 (6th Cir. 1985). the notations of several examining physicians indicating that Warner’s carpal tunnel syndrome did not affect his standing In this case, the administrative law judge essentially and walking abilities. Specifically, Dr. Ralph Scott Lazzara disregarded two conclusions of Dr. Sonke–his conclusion concluded from his physical examination of Warner that regarding the amount of weight that Warner could lift “[w]alking is unimpaired”; Dr. Blake A. Bergeon noted that No. 03-1641 Warner v. Comm’r of Social Security 7 8 Warner v. Comm’r of Social Security No. 03-1641

Warner’s “gait is normal and symmetric”; and Dr. Bartone B. concluded that Warner retained the residual functional capacity to walk or stand up to six hours in an eight hour Second, Warner argues that the administrative law judge workday. erred in finding that he could perform past relevant work because that finding was based upon an improper credibility Finally, we note that we are unpersuaded by Warner’s assessment. The administrative law judge found Warner’s argument that the administrative law judge’s partial rejection testimony regarding his pain symptoms only partially of Dr. Sonke’s opinion was based upon a “gross credible, noting: “The claimant does not indicate he is taking mischaracterization of the record.” Warner argues that the pain pills that are prescribed but over the counter pain administrative law judge grossly misrepresented the evidence medications . . . . He indicates that he wears a TENS unit and in concluding that Warner did not take prescribed pain it does help and he is able to take care of all of his personal medication because he takes Neurontin, a prescribed needs and even do some cooking on occasion.” A subjective medication, for pain relief. Although it does appear that assessment of pain symptoms is relevant to determining Warner took Neurontin as a pain reliever, the magistrate whether a claimant suffers from a disability, but is not judge correctly noted that: “None of the medical records conclusive evidence establishing a disability. Buxton v. explicitly state that Dr. Sonke prescribed Neurontin for pain Halter, 246 F.3d 762, 773 (6th Cir. 2001) (“Subjective relief.” Moreover, the administrative law judge’s finding was complaints of ‘pain or other symptoms shall not alone be consistent with the medical reference books indicating that conclusive evidence of disability.’”) (quoting 42 U.S.C. Neurontin is an anti-convulsant, not a pain reliever. § 423(d)(5)(A)). In evaluating the claimant’s subjective Furthermore, the administrative law judge did not completely complaints of pain an administrative law judge may properly overlook Warner’s use of Neurontin, but noted that Warner consider the claimant’s credibility, and we accord great took it “to help with the neuropathy.” Additionally, the deference to that credibility determination. See id.; Walters, administrative law judge did not overlook the fact that Warner 127 F.3d at 531 (stating that an administrative law judge’s took other actions to relieve his pain symptoms, such as using “findings based on the credibility of the applicant are to be a transcutaneous electrical nerve stimulation unit and taking accorded great weight and deference, particularly since an over the counter medications for pain relief. [administrative law judge] is charged with the duty of observing a witness’s demeanor and credibility.”). Under these circumstances, the administrative law judge properly rejected Dr. Sonke’s conclusions regarding Warner’s The claimant’s credibility may be properly discounted “to standing, walking and weight-lifting limitations. In reaching a certain degree . . . where an [administrative law judge] finds this conclusion, we find it significant that the administrative contradictions among the medical reports, claimant’s law judge did not reject wholesale the conclusions of Dr. testimony, and other evidence.” Walters, 127 F.3d at 531. In Sonke and indeed incorporated Dr. Sonke’s conclusions this case, the administrative law judge found Warner’s regarding Warner’s limited ability to repetitively grip or grasp subjective assessment of pain only partially credible because objects and Warner’s overall endurance as affected by his the record indicated that he was not taking prescribed pain impairment, in formulating hypothetical questions that he medication and because his own assessment of his daily posed to the vocational expert. activities indicated that his pain was not disabling. Warner argues that these findings were erroneous. We disagree. No. 03-1641 Warner v. Comm’r of Social Security 9

As discussed, the administrative law judge was technically correct in observing that Warner did not take prescribed pain medication. Rather, Warner took Neurontin–a medication that the medical reference books describe as an anti- convulsant, but was in this case apparently taken as a pain reliever. Regardless of this clarification, however, we hold that the administrative law judge’s credibility determination was supported by substantial evidence. The record reflects that although Warner alleged disabling pain, he also testified, consistent with the objective medical evidence, that he could manage his personal hygiene, pick a coin off a table, vacuum, drive short distances, and wash spoons and forks. The administrative law judge justifiably considered Warner’s ability to conduct daily life activities in the face of his claim of disabling pain. Id. at 532 (“An [administrative law judge] may also consider household and social activities engaged in by the claimant in evaluating a claimant’s assertions of pain or ailments.”). In sum, although the evidence could support the opposite result, we hold that substantial evidence in the record supports the Commissioner’s conclusion that Warner was not disabled because he retained the residual functional capacity to perform his past relevant work.1 See Buxton, 246 F.3d at 772-73 (noting that an administrative law judge’s decision must be affirmed if there is substantial evidence in the record to support it regardless of whether substantial evidence could support the opposite conclusion). Thus, for the foregoing reasons, we AFFIRM the Commissioner’s decision denying disability benefits.

1 Because we ho ld that the Commissioner’s conc lusion tha t W arner retained the residual functional capacity to perform his past relevant work was supported by substantial evidence, we nee d not address W arner’s argument that the Comm issioner did not meet its burden of establishing –at step five of the sequential review process–that W arner could perform a signficant number o f jobs in the eco nom y desp ite his impairment.