Bass v. McMahon

Decision Date21 August 2007
Docket NumberNo. 06-4415.,06-4415.
Citation499 F.3d 506
PartiesPaul W. BASS II, Plaintiff-Appellant, v. Linda S. McMAHON, Acting Commissioner of Social Security, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Timothy F. Cogan, Cassidy, Myers, Cogan, Voegelin & Tennant, Wheeling, West Virginia, for Appellant. James B. Geren, Social Security Administration, Office of the General Counsel, Chicago, Illinois, for Appellee. ON BRIEF: Timothy F. Cogan, Cassidy, Myers, Cogan, Voegelin & Tennant, Wheeling, West Virginia, for Appellant. James B. Geren, Social Security Administration, Office of the General Counsel, Chicago, Illinois, for Appellee.

Before: KENNEDY, GIBBONS, and McKEAGUE, Circuit Judges.

OPINION

KENNEDY, Circuit Judge.

Paul W. Bass II ("plaintiff") seeks review of the district court's decision upholding the Administrative Law Judge's (ALJ's) denial of disability insurance benefits. He makes two primary arguments. First, he argues that the ALJ's decision was not supported by substantial evidence, essentially because it did not give proper weight to a treating physician's opinion. He also argues that he has submitted new and material evidence, and therefore his case should be remanded to the ALJ for a rehearing. We find that the ALJ's decision was supported by substantial evidence and that plaintiff has not provided good reason for previously failing to submit the allegedly new and material evidence and therefore has not met the standard for a remand.

BACKGROUND

Plaintiff filed an application for Social Security Disability benefits based on a number of medical conditions on May 6, 2003. The state agency denied his initial application and denied him again upon reconsideration. Plaintiff then requested a hearing, which was held on October 28, 2004. The ALJ found that plaintiff, a "younger" individual, see 20 C.F.R. §§ 404.1563(c), 416.963(c), although not able to do the type of labor-intensive work he used to do, was able to perform a significant number of sedentary positions, as identified by the vocational expert. Plaintiff, therefore, was not entitled to disability benefits. Plaintiff then requested and was denied review by the Appeals Council. Plaintiff sought review in the District Court for the Southern District of Ohio. After considering plaintiff's extensive objections, the district court adopted the magistrate judge's detailed report, which found that substantial evidence supported the ALJ's decision and found that a remand was unnecessary.

Plaintiff argues on appeal that the ALJ's decision is not supported by substantial evidence because the ALJ improperly disregarded the opinion of a treating physician without providing good reasons for doing so.1 20 C.F.R. § 404.1527(d)(2) states that the Social Security Administration "will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004). He also argues that the information he provided to the Appeals Council was new and material. 42 U.S.C. § 405(g) provides that a remand for rehearing can be ordered "upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . ." After careful review of the extensive record, we affirm the district court for the reasons which follow.

ANALYSIS

Plaintiff argues that the district court erred in finding that the ALJ's decision was supported by substantial evidence. He asserts that the ALJ did not give proper weight to a treating physician's opinion. On appeal of the denial of benefits, this court conducts de novo review of the district court's legal conclusion that the ALJ's decision was supported by substantial evidence. Valley v. Comm'r of Soc. Sec., 427 F.3d 388, 390 (6th Cir.2005). When deciding under 42 U.S.C. § 405(g) whether substantial evidence supports the ALJ's decision, we do not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. Smith v. Halter, 307 F.3d 377, 379 (6th Cir.2001). Instead, we consider the ALJ's decision determinative if there is "such relevant evidence as a reasonable mind might accept" as sufficient to support the ALJ's conclusion. Foster v. Halter, 279 F.3d 348, 353 (6th Cir.2001) (citation omitted). The substantial evidence standard is less exacting than the preponderance of evidence standard. Bell v. Comm'r of Soc. Sec., 105 F.3d 244, 246 (6th Cir.1996). If the ALJ's decision is supported by substantial evidence, then reversal would not be warranted even if substantial evidence would support the opposite conclusion. Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.2005). Plaintiff also argues that the district court erred in affirming the Appeals Council's denial of rehearing, because the information submitted to the Appeals Council was both new and material. 42 U.S.C. § 405(g) (2006). After reviewing the record, we agree that the ALJ's decision is supported by substantial evidence and that no good reason was provided for not submitting this allegedly new and material evidence to the ALJ, and therefore neither of defendant's grounds for appeal has merit.

I. Substantial Evidence

Plaintiff asserts that the ALJ failed to give the good reasons required to not give a treating physician's, Dr. Naum's, opinion controlling weight. 20 C.F.R. § 404.1527(d)(2) (2006) ("[The Social Security Administration] will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."); see Wilson, 378 F.3d at 544. Plaintiff claims the ALJ rejected Dr. Naum's opinion regarding plaintiff's ability to ambulate and his gait. Plaintiff also claims the ALJ rejected Dr. Naum's opinion because on December 22 2003, Dr. Naum stated that "Mr. Bass continues to have severe low back pain, which in and of itself is disabling," and Dr. Naum at one point ordered a handicap parking pass for plaintiff, and yet the ALJ did not find plaintiff disabled.

A. Ambulation and Gait

Dr. Naum made no diagnosis and gave no medical opinion regarding plaintiff's ability to ambulate or his gait. Rather, Dr. Naum only observed that plaintiff exhibited an antalgic gait, moved slowly, and used double-braced canes to assist him. These observations, without more, are not the type of information from a treating physician which will be provided great weight under 20 C.F.R. § 404.1513(b). Additionally, 20 C.F.R. § 404.1527(a)(2) defines medical opinions as assertions involving judgments about a patient's "symptoms, diagnosis and prognosis." Dr. Naum diagnosed plaintiff with spondylolisthesis, bulging at L5-S1, obesity, hypertension, chronic obstructive pulmonary disease, cardiac dysrhythmias, and tobacco addiction. Dr. Naum recorded medical evidence of a slight spasm of the left paraspinal muscle on palpatation as well as decreased sensory to light touch in L5-5 and S 1 dermatones. Dr. Naum prescribed plaintiff medications, such as OxyContin and a Duragesic patch. All of this comports with what Dr. Heban, the state agency's physician, reported, a report to which the ALJ gave great weight in determining that plaintiff lacked credibility. Dr. Naum never asserted that plaintiff's observed quality of movement was to be expected nor asserted that use of double-braced canes was necessary given the conditions that all the doctors agree plaintiff has. Observations about plaintiff's gait and ambulation, then, are more like statements made by plaintiff about his conditions, statements that the ALJ here found not entirely credible when compared to objective medical evidence. See Young v. Sec'y of Health & Human Servs., 925 F.2d 146, 151 (6th Cir.1990) (holding that a doctor's report that merely repeats a patient's assertions about her level of pain and ability to sleep, stand, and walk is not objective medical evidence); 20 C.F.R. § 404.1529 (2006); see also Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 877 (6th Cir.2007) (holding that doctors' opinions are not due much weight when based solely on reports made by a patient that the ALJ found to be incredible). Since Dr. Naum made no medical judgments, the ALJ had no duty to give such observations controlling weight or provide good reasons for not doing so.

Even if the noted observations regarding plaintiff's gait and ambulation were considered to be Dr. Naum's medical opinions, plaintiff would still have to prove that the ALJ rejected these findings and failed to provide good reasons. See Wilson, 378 F.3d at 544. There is no support for plaintiff's argument that the ALJ rejected these alleged findings. Dr. Naum variously noted over time that plaintiff had a limp, slow movement, initial antalgic steps when walking, and used two canes to support himself when walking. Mr. Czuczman, the vocational expert, testified that use of a cane and slow walking would not limit plaintiff's ability to perform the jobs he determined plaintiff could do in response to the ALJ's hypothetical. While Mr. Czuczman did say that plaintiff would not be able to perform the jobs if plaintiff leaned on his canes with both hands while sitting, neither Dr. Naum nor any other doctor ever recorded that he observed plaintiff doing this. Therefore, failure to explicitly state how much weight the ALJ was providing such observations is harmless under Wilson because the ALJ's opinion is completely consistent with such observations. See Wilson, 378 F.3d at 547; see also Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535-36 (6th Cir.2001).

B. Statements About Plaintiff Being Disabled

The ALJ properly rejected Dr. Naum's conclusion of disabling back pain as well as the inference of disability that could be drawn from Dr. Naum ordering plaintiff a handicap parking sticker. 20 C.F.R. § 404.1527(e)(1) explicitly states that the conclusion of...

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  • Case Index
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume I
    • 4 Mayo 2015
    ...6th-04 § 202.2. Treating Physician Rule by Circuits Baker v. Barnhart , 457 F.3d 882 (8th Cir. June 13, 2006), 8th-06 Bass v. McMahon , 499 F.3d 506 (6th Cir. Aug. 21, 2007), 6th-07 Bates v. Colvin , 736 F.3d 1093 (7th Cir. Dec. 2, 2013), 7th-13 Batson v. Comm’r of SSA , 359 F.3d 1190 (9th ......
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    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. II - 2014 Contents
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    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. I - 2014 Preliminary Sections
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    ...6 th -04 § 202.2 Treating Physician Rule by Circuits Baker v. Barnhart, 457 F.3d 882 (8 th Cir. June 13, 2006), 8 th -06 Bass v. McMahon , 499 F.3d 506 (6 th Cir. Aug. 21, 2007), 6 th -07 Bates v. Colvin , 736 F.3d 1093 (7 th Cir. Dec. 2, 2013), 7 th -13 Batson v. Comm’r of SSA , 359 F.3d 1......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume II
    • 4 Mayo 2015
    ...No. 94-3004 (6th Cir. Aug. 11, 1994), § 1210.12 Bassett v. Astrue , 641 F.3d 857 (7th Cir. May 27, 2011), 7th-11 Bass v. McMahon , 499 F.3d 506 (6th Cir. Aug. 21, 2007), 6th-07, 6th-12 Bass v. McMahon , 499 F.3d 506, 509 (6th Cir. 2007), 6th-12 Bass v. Soc. Sec. Admin. , 872 F.2d 832, 833 (......

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