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Culley v. Colvin

United States District Court, District of Kansas

March 26, 2015

CORD BUCKLEY CULLEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL United States District Judge

Cord Buckley Culley appeals the final decision of the Commissioner of Social Security to deny disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. For reasons set forth below, the Court affirms the judgment of the Commissioner.

Procedural Background

On August 10, 2010, plaintiff filed his disability application with the Social Security Administration. See Transcript Of Administrative Record (Doc. #12) filed November 18, 2013 (“Tr.”) at 125-33. He alleged a disability onset date of August 20, 2008. Plaintiff’s benefit application was denied initially and on reconsideration. On March 28, 2012, an administrative law judge (“ALJ”) concluded that plaintiff was not under a disability as defined in the Social Security Act and that he was not entitled to benefits. See id. at 10-22. On July 5, 2013, the Appeals Council denied plaintiff’s request for review. See id. at 1-3. The decision of the ALJ stands as the final decision of the Commissioner. See 42 U.S.C. § 405(g). Plaintiff appealed the final decision of the Commissioner to this Court.

Factual Background

The following is a brief summary of the evidence presented to the ALJ. Plaintiff is 40 years old. He holds an associates degree and has worked as a heating and cooling technician. Tr. 34, 194. Plaintiff initially alleged that he was disabled due to a bad back, high blood pressure and obesity. Tr. 182. At the hearing before the ALJ, plaintiff testified that primarily he cannot work because of chronic pain (low back pain and nerve pain that moves into the hips and down both legs). Tr. 35. Plaintiff also claims that he is restricted from working because of obesity, sleep apnea and depression.

Plaintiff has not worked since August 20, 2008, when he injured his back at work while moving a dolly loaded with equipment. Tr. 353. An MRI revealed a moderate sized disc extrusion at L5-S1 with mass effect upon the thecal sac and some abutting nerve roots, and mild disc bulge at L4-L5 without sequela. Tr. 340. From August of 2008 through February of 2010, plaintiff sought medical treatment for back pain with some success. As of February 26, 2010, plaintiff was looking for a job without any heavy duty tasks. Tr. 408. On April 5, 2010, after a discharge from physical therapy, plaintiff reported that he was doing well and did not need pain medication. Tr. 422. At the hearing before the ALJ, plaintiff confirmed that by April of 2010, he was doing well and not taking pain medications. Tr. 36.

Plaintiff did not seek treatment between April 5 and December 9, 2010. On December 9, 2010, Sushmita Veloor, M.D., evaluated plaintiff.[1] Dr. Veloor noted that plaintiff’s last prescription for pain medication was in December of 2009, but that he had returned because of a “flare up” of back pain about three to four weeks earlier (in November of 2010). Tr. 503. Plaintiff reported that he was not sure what had caused the flare up. Id. On February 17, 2011, Dr. Veloor re-evaluated plaintiff. She noted that he had started an exercise program about three weeks earlier and that his range of motion was better, but that his pain was not better. Tr. 502. Dr. Veloor noted that plaintiff was “still trying to find a job.” Id.

On March 29, 2011, plaintiff sought therapy for depression at Bert Nash CMHRC, Inc. Tr. 530. On April 6, 2011, Loraine Herndon, LSCSW, rated plaintiff’s global assessment of functioning (“GAF”) at 48, which indicated that plaintiff had “serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).”[2] S e e Tr. 535; DSM-IV-TR at 34. Plaintiff attended weekly therapy sessions through at least July of 2011. On July 12, 2011, Herndon diagnosed major depressive disorder, recurrent, moderate. Tr. 526. After several weekly therapy sessions, Herndon rated plaintiff’s GAF at 61, which indicated some mild symptoms but that he was generally functioning pretty well. See DSM-IV-TR at 32.

By May and June of 2011, plaintiff had sought treatment for back pain including radiating pain going down his legs. Tr. 586, 588. Plaintiff received epidermal injections with limited relief. Dr. Veloor recommended that plaintiff consult a neurosurgeon. Tr. 588. In September and October of 2011, plaintiff decided that he would first pursue lap band surgery for his weight. Tr. 615, 616.

On September 29, 2011, Michael Lange, M.D., evaluated plaintiff. Dr. Lange noted that plaintiff’s functioning was improved and that he was tolerating his medicine without side effects. Tr. 618.

At the ALJ hearing on December 13, 2011, plaintiff testified that he had fallen around six to eight months earlier, and that he had had continued pain since that point. Tr. 36. Plaintiff also testified that he had side effects of medications including dizziness and blurred vision. Tr. 35, 44-45.

Dr. Veloor opined that plaintiff is limited to less than sedentary exertional level work, including limitations of standing/walking for two hours in an eight-hour day and sitting for three hours in an eight-hour day. Tr. 591. Dr. Veloor also opined that plaintiff has a number of nonexertional limitations including that he must avoid even moderate exposure to extreme cold, extreme heat, weather and wetness/humidity. Tr. 592. Dr. Veloor concluded that plaintiff is unable to “return to any gainful employment with his current limitations.” Tr. 597.

The ALJ gave minimal weight to Dr. Veloor’s opinions. Tr. 18. The ALJ noted as follows:

Although Dr. Veloor has examined the claimant on several occasions, her opinions are not supported by the objective evidence. As discussed, results upon physical examination were often relatively benign. Moreover, objective results upon diagnostic imaging included qualifying terms such as “mild” or “minimal.” In addition, the claimant’s reported activities are not consistent with Dr. Veloor’s assessments. In fact, as noted, at one examination the claimant told Dr. Veloor that he was looking for work, which is obviously inconsistent with Dr. Veloor’s opinion that the claimant is unable to work.
I note that many of Dr. Veloor’s restrictions have little or no objective basis, or, it is at least unclear why she assessed some of these limitations. For instance, it is not clear what impairments or symptom would require the claimant to avoid cold, heat, weather, or wetness/humidity and Dr. Veloor does not provide any explanations as to why the claimant is so limited. Finally, Dr. Veloor’s opinion that the claimant is unable to return to gainful employment with these limitations is outside the scope of her expertise; she is not a vocational expert and did not examine the claimant as such. Further, such an opinion is tantamount to an opinion that the claimant is “disabled, ” which is an opinion on an issue reserved to the Agency. Thus, I give minimal weight to Dr. Veloor’s opinions.

Tr. 18-19.

Dr. Kevin Hughes, M.D., plaintiff’s primary care physician, opined that plaintiff is limited to less than sedentary exertional level work, including standing/walking for one hour in an eight-hour workday and sitting for two hours in an eight-hour workday. Tr. 594. Dr. Hughes also opined that plaintiff would need to avoid even moderate exposure to extreme cold, extreme heat, weather, and wetness/humidity. Tr. 595. Dr. Hughes ...


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