Dykes Ex Rel. Brymer v. Barnhart

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0018n.06
Filed: October 12, 2004
No. 03-6076
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHARON DYKES, o/b/o LINDA A. )
BRYMER, deceased, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF TENNESSEE
JO ANNE B. BARNHART, Commissioner )
of Social Security, )
)
Defendant-Appellee. )
Before: MARTIN, COLE, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Linda Brymer applied for social security
disability insurance benefits (DIB) in 1998. After a hearing, an Administrative Law Judge (ALJ)
found that Brymer could perform her past relevant work as a fast food supervisor and denied
benefits. Brymer sought judicial review of the decision, and the district court affirmed the denial
of benefits. Brymer appeals, arguing that the ALJ erred in failing to offer reasons for disregarding
the findings of a doctor performing a consultative examination. Brymer requests that this court
reverse or remand the decision denying benefits. For the reasons set forth below, we affirm the
district court’s decision.
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I.
Linda Brymer was born in 1945 and had a high school education.1 She worked as a back-
line fast food supervisor at Hardee’s until some point late in 1998 and did not work in any job
afterwards. Her previous job is classified as light work for the purposes of the medical-
vocational guidelines under 20 C.F.R. pt. 404, subpart P, app. 2. See 20 C.F.R. § 404.1567(b).
Brymer alleged that beginning October 15, 1998, she had a disabling condition entitling
her to social security DIB. On her application for DIB, she listed numerous illnesses, injuries,
and conditions that limited her ability to work, including high blood pressure as well as pain in
her lungs, spine, stomach, and arms. At a hearing before an ALJ, Brymer alleged other
impairments, including asthma, pulmonary disease, degenerative disc disease, diabetes, sleep
apnea, depression, and panic disorder with agoraphobia.
Numerous doctors conducted medical examinations of Brymer over the relevant period of
time for consideration of her disability claim. A summary of the notable examinations follows:
(a) Between January 1996 and January 2000, Brymer was treated at the Optima Health
Center for bronchitis, asthma, hypertension, and other conditions. A letter from the
Optima Health Center dated November 30, 1999, stated that Brymer had severe
degenerative disc disease, arthritis, pulmonary disease and asthma.
(b) In April 1998, Brymer underwent surgery for removal of a cyst from her abdomen.
(c) Between October 1998 and August 1999, Thomas Fulbright, M.D., treated Brymer for
back pain. Brymer underwent surgery for neck and back pain in October 1998. By
1
Brymer died on April 26, 2002. The cause of death was listed as cardiopulmonary arrest,
respiratory failure, and severe chronic obstructive pulmonary disease. Brymer’s daughter Sharon
Dykes prosecuted this case on behalf of her mother, but for the sake of convenience this opinion will
refer only to Brymer.
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August 1999, Brymer’s neck pain was “much better,” and she could move her cervical
spine “without complaint.”
(d) From December 1998 to April 1999, Brymer was treated for psychological conditions at
the Fortwood Center.
(e) In January 1999, Thomas Mullady, M.D., performed a consultative examination of
Brymer’s back pain at the request of the Department of Human Services’ Disability
Determination Section.2 He made numerous observations, including that knee reflexes
were absent, range of lower back motion was limited, and range of motion on the cervical
spine was normal. He noted Brymer’s history of cervical disc disease, asthma, sleep
apnea, pulmonary disease, diabetes, high blood pressure, and carpal tunnel syndrome. He
concluded that Brymer could frequently lift and/or carry up to ten pounds from one-third
to two-thirds of an eight-hour workday. Also, he reported that Brymer “would be able to
stand and/or walk with normal breaks for a total of at least two hours in an 8-hour
workday and would be able to sit with normal breaks for a total of about six hours in an
8-hour workday.”
(f) In February 1999 and May 1999, respectively, Drs. H.T. Lavely, Jr. and Louise Patikas
prepared residual functional capacity assessments of Brymer based on a review of the
records. Both doctors reached the conclusion that Brymer could stand and/or walk for
six hours in an eight-hour day and sit for six hours in an eight-hour day and that plaintiff
2
“A consultative examination is a physical or mental examination or test purchased for [the
claimant] at [the Agency’s] request and expense from a treating source or another medical source....”
20 C.F.R. § 404.1519.
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could frequently lift at least ten pounds. These conclusions contradicted Dr. Mullady’s
conclusions.
(g) From March to July 1999, Lynn Crosby, M.D., treated Brymer for a ruptured Achilles
tendon. In July 1999, Dr. Crosby reported that Brymer felt “comfortable” walking with
the help of a brace.
(h) In August 1999, Trina McLeod, M.D., prepared a medical source statement regarding
Brymer’s mental health. Dr. McLeod wrote that Brymer could not be relied upon to
show up for a job on time on a consistent basis and perform adequately while present
because of “social discomfort and withdrawal, impaired ability to maintain attention and
unreliable ability to behave in an emotionally stable manner.”
(i) From October to December 1999, Gregory Ball, M.D., treated Brymer for chronic back
and neck pain. In a letter written one week before Brymer’s hearing in December 1999,
Dr. Ball wrote that due to Brymer’s “chronic pain,” it would be “difficult for [her] to find
any form of full-duty permanent employment.”
(j) In November 1999, Dr. A. Supan prepared a medical source statement regarding
Brymer’s mental health, stating that Brymer was “apt to have difficulty functioning in an
occupational setting due to physical problems.”
After Brymer’s hearing, the ALJ determined that she had the residual functional capacity
to perform light exertional work - in other words, that she could still do her previous job.3 See
3
The federal social security regulations provide that disability claims are evaluated through
a five-step approach. 20 C.F.R. § 404.1520. If, at any step, a claimant is determined to be disabled
or not disabled, the analysis ends. Id. § 404.1520(a)(4). In this case, the ALJ determined that
Brymer had not engaged in substantial gainful activity after January 1, 1999; that she was severely
impaired; and that her impairments did not meet or equal an impairment listed in 20 C.F.R. pt. 404,
subpart P, app. 1. See id. § 404.1520(b)-(d). Since these first three steps did not yield a conclusion,
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20 C.F.R. §§ 404.1520(e), 404.1567(b). Therefore, the ALJ determined that Brymer was not
disabled. In reaching this conclusion, the ALJ stated that he “carefully considered all the
documents identified in the record as exhibits, the testimony at the hearing and the arguments
presented.” The ALJ cited numerous exhibits in his decision, including many of the doctor’s
reports discussed above. The ALJ gave reasons for discrediting some of the reports that tended
to show that Brymer had a disability, including those offered by Dr. Ball, Dr. Supan, the
Fortwood Center, and the Optima Health Center. For the purposes of this appeal, it should be
noted that the ALJ referred to Dr. Mullady’s report only once in his discussion, stating: “The
only mention [of diabetes] is made by consultative examiner Dr. Thomas Mullady who reports
diabetes by history.”
II.
Linda Brymer filed her application for social security DIB on November 12, 1998.4 The
application was denied, both upon initial review and upon reconsideration. Brymer requested a
hearing before an ALJ, and one was held on December 13, 1999. The ALJ issued his decision
on June 1, 2000. The Appeals Council of the Social Security Administration denied Brymer’s
the ALJ proceeded to evaluate Brymer’s residual functional capacity, “based on all the relevant
medical and other evidence” in the case record. Id. § 404.1520(e). Brymer does not contest the
ALJ’s determinations as to the first three steps of the analysis.
4
It should be noted that Brymer also applied for supplemental security income benefits,
which are paid only to the spouse of the deceased. See 20 C.F.R. § 416.542(b)(1). Brymer was
divorced from her spouse in 1988 and never remarried. Sharon Dykes did not assert any basis for
standing to pursue this claim, and the appellant concedes in her brief that supplemental security
income benefits are not involved in this appeal.
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request for review of the decision on September 27, 2001, thereby giving the ALJ’s decision
final status as the decision of the Commissioner of Social Security.
In November 2001, Brymer appealed the ALJ’s decision to federal district court. United
States Magistrate Judge William B. Carter issued a report and recommendation on Brymer’s
case in January 2003, recommending that because the Commissioner’s decision was not
supported by substantial evidence, the decision should be reversed and remanded. The
Commissioner filed objections to the report and recommendation; Brymer responded; and on
March 28, 2003, United States District Judge R. Allan Edgar rejected the report and
recommendation, concluding that “the record contains substantial evidence to support the ALJ’s
decision.” Brymer moved to alter or amend the district court’s judgment pursuant to Fed. R.
Civ. P. 59(e), but the district court denied her motion on June 16, 2003. Brymer appealed to
this court on August 13, 2003.
III.
When reviewing the Commissioner’s decision on whether a claimant is disabled, this
court is limited to determining whether there is substantial evidence in the record to support the
ALJ’s findings of fact and whether the ALJ complied with applicable legal criteria. Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997); Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir.
1990). Even if there is substantial evidence in the record to support an opposite conclusion, the
ALJ’s decision should be affirmed as long as it too is supported by substantial evidence. Smith
v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); see also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive....”). Substantial evidence is “such relevant evidence as a reasonable mind might
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accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotation omitted). Judicial review of the ALJ’s findings must be based on the record as a
whole, and therefore this court can consider any evidence in the record. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th. Cir. 2001).
At the fourth step of the sequential approach described in 20 C.F.R. § 404.1520, it is the
claimant’s burden to show that she is unable to perform her previous type of work. See
Studaway v. Sec’y of Health & Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987). Here, the
ALJ determined that Brymer had not met this burden. Brymer’s argument on appeal is that the
ALJ’s failure to explain why he rejected Dr. Mullady’s assessment of Brymer’s condition is
error requiring this court to reverse the Commissioner’s decision.5 Specifically, Brymer argues
that Dr. Mullady’s analysis of how much she could walk, stand, and lift during an eight-hour
day constituted a determination that Brymer was able to perform only sedentary work, not light
work, under 20 C.F.R. § 404.1567. If Brymer were limited to sedentary exertion, and
considering Brymer’s age and education, the medical-vocational guidelines would direct a
finding of “disabled.” See 20 C.F.R. pt. 404, subpart P, app. 2, rule 201.14. Therefore, Brymer
argues, if the ALJ had given credence to Dr. Mullady’s report, the ALJ would have reached a
different conclusion. When one combines Brymer’s argument with the standard of review for
5
Brymer lists three arguments in the “statement of the issues” in her brief, but the latter two
– that Dr. Mullady’s opinion is consistent with other sources in the record, and that the failure to
address his opinion cannot be rehabilitated via post hoc rationalizations – are merely variants or
amplifications of her primary argument. Brymer herself seems to recognize this, at least with regard
to the second argument, conceding that whether Dr. Mullady’s opinion is consistent with other
sources is “technically not relevant to the legal error of the ALJ’s failure to address Dr. Mullady’s
opinion.”
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this court on appeal, the argument can essentially be seen as an argument that the ALJ’s finding
was not supported by substantial evidence. However it is articulated, the argument fails.
A.
The Commissioner of Social Security is required to provide a statement discussing the
evidence and reasons upon which the decision to deny benefits is based. See 42 U.S.C. §
405(b)(1). In her brief, Brymer fails to cite this circuit’s most apposite precedent interpreting
this requirement. In Heston, a claimant for DIB appealed the denial of benefits, arguing that the
ALJ hearing her case failed to state reasons for rejecting the report of the claimant’s treating
physician. 245 F.3d at 531. In finding that the ALJ’s decision was supported by substantial
evidence in the record deriving from other medical sources, the court held that the ALJ’s failure
to even mention the treating physician’s report was harmless error. Id. at 535-36. Likewise, the
Eighth Circuit, confronting a fact situation similar to Brymer’s, concluded that even if an ALJ
cited only part of a doctor’s report in his decision, the ALJ could still have considered (and
rejected) another portion of the same report:
Although required to develop the record fully and fairly, an ALJ is not required to
discuss all the evidence submitted, and an ALJ’s failure to cite specific evidence does
not indicate that it was not considered. In addition to the report by [the treating
physician], the record also contains the opinions of two consulting physicians, neither of
whom made any observations that would support [the claimant]’s allegations of
complete disability. Thus, given the ALJ's explicit reliance on some of [the treating
physician]’s conclusions, we find it “highly unlikely that the ALJ did not consider and
reject” those portions of his report that [the claimant] now points to in support of her
appeal.
Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (citations omitted).
The present case involves the opinion of a consultative examiner, whose opinion is
usually entitled to less weight than that of a treating physician. See 20 C.F.R. § 404.1527(d).
Logically, then, if the refusal to even acknowledge the opinion of a treating physician was
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harmless error in Heston, then the ALJ’s failure in the present case to discuss thoroughly the
opinion of a consultative examiner does not warrant reversal. After all, the ALJ did not ignore
Dr. Mullady’s opinion altogether; there was a reference to Dr. Mullady’s treatment of Brymer
in the ALJ’s decision. Moreover, just as in Craig, the record in Brymer’s case includes
opinions from other treating physicians and doctors performing residual functional capacity
assessments that support the ALJ’s conclusion and contradict the opinion of Dr. Mullady.
Brymer asserts that an ALJ is required to articulate reasons for rejecting the opinion of a
consultative examiner that the claimant is disabled. Brymer’s reliance on Hurst v. Sec’y of
Health & Human Servs., 753 F.2d 517 (6th Cir. 1985), and similar cases for this proposition is
misplaced. In Hurst, the ALJ failed to address a treating physician’s assessment of the
claimant’s condition. Id. at 518-19. The court held that the decision was not supported by
substantial evidence. Id. at 520-21. However, the court’s holding was not based solely on the
ALJ’s failure to address the treating physician’s assessment. Numerous other reasons were
cited for the court’s conclusion, including: that the Agency relied on potentially fraudulent
consultative examinations; that the ALJ incorrectly characterized some of the physician’s
earlier reports as contradictory to her subsequent assessment; and that the ALJ incorrectly
dismissed objective medical findings. See id. at 519-21. Also, Hurst involved a treating
physician, not a consultative examiner. Hurst thus does not govern this case; Heston does, and
the ALJ’s failure in the present case to explain why he disregarded part of the opinion of a
consultative examiner does not warrant reversal.
B.
Even if the ALJ committed error in failing to explicitly reject Dr. Mullady’s assessment,
the error is harmless, as the fundamental question for this court is whether the ALJ’s decision is
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supported by substantial evidence. See Heston, 245 F.3d at 535-36. A few examples from the
record, most of which were cited by the ALJ in his decision, will suffice to demonstrate that
substantial evidence supports the finding that Brymer was not disabled. Dr. Fulbright’s
assessments of Brymer’s neck and back pain in August 1999 indicate that her pain had
subsided, and this conclusion was affirmed by Dr. Ball in October of that year. Dr. Ball’s
reports did not suggest that any of Brymer’s conditions would affect her ability to work, and he
even indicated that Brymer’s ailments were improving. Similarly, although Brymer ruptured
her Achilles tendon in March 1999, her doctor reported that by July Brymer had responded well
to treatment. The doctor released Brymer from a follow-up appointment. In the same month,
another doctor stated that Brymer had responded well to medication for her “mild to moderate
obstructive airways disease,” and she also showed “good clinical response” with regard to her
sleep apnea. Evidence indicating that the claimant’s impairments can be controlled with
medication can serve as substantial support for an ALJ’s conclusion. See Houston v. Sec’y of
Health & Human Servs., 736 F.2d 365, 367 (6th Cir. 1984).
A final example of the evidence supporting the finding that Brymer was not disabled is
provided by Dr. Mullady’s report itself. Dr. Mullady’s report asserted that Brymer had normal
range of motion on her cervical spine and all joints other than her lower back; normal gait,
balance, and grip strength; and no sensory deficits. In addition, Dr. Mullady advised that
Brymer could “stand and/or walk for a total of at least two hours in an 8 hour workday.”
(Emphasis added.) Even though Brymer reads this opinion as limiting her to sedentary work, it
could be also interpreted as allowing the “good deal of walking or standing” required by light
work, thereby yielding the conclusion that Brymer was not disabled. See 20 C.F.R. §
404.1567(b). In any event, while the ALJ did not explicitly address the parts of Dr. Mullady’s
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opinion that were favorable to Brymer’s claim, he also did not address these portions of Dr.
Mullady’s opinion that would have tended to disprove Brymer’s claim. The information that
undermines Brymer’s claim augments the evidence underlying the ALJ’s decision, which, taken
together, is substantial.
IV.
For the foregoing reasons, we affirm the district court’s decision.
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