Kathy LeFevers v. Social Security Adminstration

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0157n.06
No. 10-5784
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
KATHY W. LeFEVERS, ) Feb 07, 2012
)
Plaintiff-Appellant, ) LEONARD GREEN, Clerk
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
COMMISSIONER OF SOCIAL ) EASTERN DISTRICT OF KENTUCKY
SECURITY, )
)
Defendant-Appellee.
Before: SUHRHEINRICH, SUTTON and COOK, Circuit Judges.
SUTTON, Circuit Judge. Kathy LeFevers asks us to reverse the district court’s conclusion
that an administrative law judge (ALJ) permissibly denied her benefits under the Social Security Act.
Because substantial evidence supports the ALJ’s decision, we affirm.
I.
After a car accident in September 2000, LeFevers received chiropractic treatment for pain
in her neck and restricted movement in her left arm. In December 2001, she began seeing Dr.
Talmadge Hays, a primary care physician who determined that LeFevers suffered from bulging discs
in her cervical spine and spinal cord compression. Dr. Hays referred LeFevers to Dr. Henry Tutt,
a neurosurgeon who evaluated LeFevers the same month and recommended surgery to fuse some of
LeFevers’s cervical vertebrae. LeFevers refused surgery.
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In May 2005, LeFevers saw several doctors for evaluation and treatment. She visited Dr.
Hays in August and November of 2005 for medication refills. Dr. Hays followed up in January
2006, conducting an assessment of LeFevers’s ability to perform work-related activities. He found
that LeFevers: (1) could sit, stand or walk for one hour each out of an eight-hour workday; (2) could
lift up to ten pounds occasionally, but could never lift more than that or carry any weight at all; (3)
could occasionally bend but could not squat, crawl, climb, grasp with either hand, or reach above
shoulder level; and (4) was “afraid to undergo nec[essary] surgery.” AR 179. In May 2006,
LeFevers had a second car accident and again came to Dr. Hays complaining of pain in her neck, arm
and back.
In August 2007, LeFevers visited Dr. Ronald Dubin, an orthopedist who evaluated
LeFevers’s neck, back and MRI scans. He found several bulging discs in her cervical vertebrae and
one bulging disc in her lumbrosacral spine. Dr. Dubin concluded that LeFevers’s lower back
problems were the result of her recent accident, but that 50% of her cervical spine problems were
caused by the accident nine years earlier. Dr. Dubin recommended spinal decompression for
LeFevers’s lumbrosacral spine. LeFevers underwent the spinal decompression, and it relieved much
of the pain in her lower back. Dr. Dubin noted that LeFevers had reached maximum medical
improvement but would remain impaired due to the second car accident and would be unable to
perform any work requiring “repetitive bending, stooping, lifting or crawling.”
In May 2008, LeFevers visited Dr. Bradley Davis. Dr. Davis found that LeFevers had
decreased range of motion in her neck and lower back but no joint deformities or decreased range
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of motion in her upper extremities. Due to her decreased range of motion, Dr. Davis recommended
that LeFevers be mildly restricted in “lifting, carrying, reaching, pushing, pulling, climbing,
crawling, and environmental [exposure to] vibrations.” AR 346. He found no evidence that
LeFevers had a reduced tolerance for “stooping, bending, sitting, standing, moving about, handling
objects, or traveling.” Id. Dr. Davis found that LeFevers could stand, sit or walk for eight hours
during the work day and could operate foot controls continuously.
LeFevers applied for disability benefits in 2005, claiming she had been disabled since the
2000 accident. The agency denied benefits, and the ALJ affirmed the denial. At the request of the
Commissioner, the district court remanded her case for further consideration. The ALJ held a second
hearing, compiling more information about the second accident and additional treatment notes from
Drs. Hays, Dubin and Davis. The ALJ again found no disability, and the district court affirmed.
II.
LeFevers presses two claims on appeal: (1) the ALJ rejected the opinion of Dr. Hays, her
treating physician, without providing good reasons for doing so; and (2) the ALJ relied on a
vocational expert’s testimony based on flawed hypotheticals.
Treating physician. ALJs must “evaluate every medical opinion [they] receive” about a
claimant and give “controlling weight” to opinions from treating sources “[i]f [they] find that a
treating source’s opinion . . . is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s]
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case record.” 20 C.F.R. § 404.1527(d), (d)(2). An ALJ must provide “good reasons” for not giving
a treating physician’s opinion controlling weight. Id.
In this instance, the ALJ considered the treatment notes from Dr. Hays, but gave them “little
weight” because the assessments were “overstated” and “not consistent with the weight of the
longitudinal medical treatment showing only sporadic, conservative treatment.” AR 250. The ALJ
relied on several features of LeFevers’s treatment history that were inconsistent with Dr. Hays’s
assessment: LeFevers refused to undergo necessary surgery out of fear and declined to have non-
surgical decompression performed on her cervical spine, even though the same procedure alleviated
the pain in her lower back; she claimed she could not afford the surgery, an account inconsistent with
the $42,000 settlement she received from the two accidents; she opted for conservative treatment of
the pain, which was inconsistent with Dr. Hays’s assessments of severe, life-altering pain; she
received only sporadic care and tried not to take her medications unless absolutely necessary, and
even then often took half-doses; and she was able to perform “essentially normal activities of daily
living,” which included caring for her children and her 20-year old daughter. The ALJ found that
this “evidence demonstrates mild chronic pain with moderate, infrequent, episodes of exacerbation,”
as opposed to the kind of debilitating condition described by Dr. Hays. AR 249.
All of this amounts to “good reasons” for refusing to give controlling weight to a treating
physician’s opinion. The ALJ permissibly opted not to give Dr. Hays’s opinion controlling weight.
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Vocational expert testimony. The ALJ also found LeFevers was not entitled to benefits
because the Commissioner identified many jobs in the national economy that LeFevers could
perform. AR 252. See 20 C.F.R. §§ 404.1560(c), 404.1566. An ALJ may rely on the opinions of
a vocational expert premised on an accurate portrayal of the claimant’s impairments. Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 512–13 (6th Cir. 2010). Had the ALJ improperly discounted
Dr. Hays’s opinion, LeFevers would have a serious argument here, as the hypothetical premised on
the Hays opinion shows few available jobs. Yet because the ALJ permissibly discounted the Hays
opinion, that requires LeFevers to show that the vocational hypothetical on which the ALJ relied
did not reflect the assessments of two other opinions, those of Drs. Dubin and Davis, which the ALJ
credited. AR 250. No reversible error occurred.
The ALJ asked the vocational expert:
Assume the Claimant would be capable of light exertion, would be not capable of
doing any climbing of ramps or ladders or scaffolds, no balancing, no exposure to
vibrating equipment or torso vibration—either one. Simple instructions, occasional
and casual contact with supervisors or co-workers, capable of making occasional
adjustments to work place or work routine settings, work schedule. . . . The Claimant
requires an object-focused environment. Now with these limitations and considering
the Claimant’s age and education level would there be jobs in the regional or national
economy such a person might perform?
AR 430. The expert identified 6,400 positions in the state of Kentucky and 305,000 in the nation
for a person facing these qualifications and limitations. AR 431. The ALJ followed up by asking:
Light exertion, no climbing of ladders, ropes, or scaffolds, no crawling, no more than
occasional climbing of ramps or stairs or stooping or bending or crouching, no sitting
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or standing and each in excess of 30 minutes uninterrupted, no overhead motions
with the . . . non-dominant left upper extremity. No more than frequent reaching,
pushing, or pulling—and when I say reaching I mean reaching in other directions
other than of overhead—with a non-dominant left upper extremity. . . . With these
additional limitations, [ ] would this effect the answer to the prior hypothetical?
AR 431. The expert responded that these limitations would reduce the number of available jobs by
half, leaving 3,200 jobs in the region and 146,000 in the nation. AR 431.
As LeFevers sees it, these hypotheticals omitted restrictions identified by the doctors on
whom the ALJ relied: (1) Dr. Dubin’s opinion that LeFevers could not perform “repetitive” lifting
and (2) Dr. Davis’s restriction on more than occasional reaching. As to the first point, the
hypothetical assumed LeFevers could perform light work, defined to include “lifting no more than
20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20
C.F.R. § 404.1567(b) (emphasis added). Dr. Dubin is not an agency doctor, and nothing indicates
he was using the term “repetitive”—or not using the term “frequent”—in any technical sense. In
ordinary nomenclature, a prohibition on “repetitive” lifting does not preclude a capacity for
“frequent” lifting, as the district court held. No reversible inconsistency exists.
As to the second point, the relevant hypothetical assumes that LeFevers can handle jobs
requiring “no more than frequent reaching.” LeFevers complains that this assessment is inconsistent
with an agency disability form filled out by Dr. Davis, in which he checks a box saying that she
could engage in “occasional[]” reaching. She is right about the inconsistency but wrong to say it
makes a difference. Dr. Davis issued a four-page report about his treatment of LeFevers and her
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medical condition, which concluded that there was only a “mild restriction in [LeFevers’] tolerance
for . . . reaching.” AR 346. Any discrepancy between the form and the report was resolved by the
ALJ in his findings concerning LeFevers’ residual functional capacity. There, the ALJ finds she can
perform “no more than frequent . . . reaching.” AR 245–46. LeFevers has not challenged the
validity of this finding (other than to say Dr. Hays’s opinion should not have been discounted), and
accordingly cannot credibly complain that it should not have been a premise of this hypothetical
presented to the vocational expert. No error occurred.
III.
For these reasons, we affirm the denial of benefits.
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