Biestek v. Comm'r of Soc. Sec.

• Decision Date: 27 December 2017
• Docket Number: No. 17-1459,17-1459
• Citation: 880 F.3d 778
• Parties: Michael J. BIESTEK, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

880 F.3d 778

Michael J. BIESTEK, Plaintiff-Appellant,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 17-1459

United States Court of Appeals, Sixth Circuit.

Argued: October 6, 2017

Decided and Filed: December 27, 2017^*

ARGUED: Meredith E. Marcus, DALEY DISABILITY LAW, P.C., Chicago, Illinois, for Appellant. Michael L. Henry, SOCIAL SECURITY ADMINISTRATION, Boston, Massachusetts, for Appellee. ON BRIEF: Meredith E. Marcus, Frederick J. Daley, Jr., DALEY DISABILITY LAW, P.C., Chicago, Illinois, for Appellant. Michael L. Henry, SOCIAL SECURITY ADMINISTRATION, Boston, Massachusetts, for Appellee.

BEFORE: CLAY, COOK, and WHITE, Circuit Judges.

COOK, Circuit Judge.

Plaintiff-Appellant Michael J. Biestek ("Biestek") alleges that he became disabled on October 28, 2009, for purposes of receiving Disability Insurance Benefits and Supplemental Security Income under the Social Security Act. An Administrative Law Judge ("ALJ") issued a partially favorable decision finding Biestek disabled beginning May 4, 2013, some three-and-a-half years short of the time he claimed.

Biestek sought judicial review of the ALJ's finding of non-disability for the period between October 28, 2009, and May 4, 2013. The district court rejected his claims. We AFFIRM.

I. BACKGROUND

Biestek, fifty-four, worked for most of his life as a carpenter and a laborer in various construction-related roles. His work frequently entailed transporting scaffolding, panels, and other construction materials around work sites. He completed at least twelve years of education, plus one year of college, and received additional vocational training as a bricklayer and carpenter. He stopped working in June 2005, allegedly due to degenerative disc disease, Hepatitis C, and depression.

Biestek applied for Supplemental Security Income and Disability Insurance Benefits in March 2010, alleging a disability onset date of October 28, 2009. The Social Security Administration ("SSA") initially denied this application in August 2010. Biestek requested a hearing before an ALJ, the ALJ denied Biestek's application, and the Social Security Administration Appeals Council denied review. Biestek timely appealed to the district court. That court adopted a magistrate judge's report and recommendation and remanded the case to the SSA because the ALJ had not obtained necessary medical-expert testimony and did not pose a sufficiently specific hypothetical to the vocational expert.

Following a second hearing and additional opinion gathering, the ALJ issued a partially favorable decision finding Biestek disabled starting on his fiftieth birthday (May 4, 2013)—the point at which the Agency deems an applicant "closely approaching advanced age" and thus presumptively disabled pursuant to 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.14; see also 20 C.F.R. § 404.1563(d) (defining persons "closely approaching advanced age" as between ages fifty and fifty-four). The ALJ found that Biestek was "not disabled" before May 4, 2013, however.

Biestek again appealed to the district court. This time, though, the magistrate judge's report and recommendation found that the ALJ's decision should be affirmed in full. Rejecting Biestek's objections, the district court then adopted the report and recommendation. This timely appeal followed.

II. ANALYSIS

Biestek briefs five issues, but because he forfeited one by failing to timely raise it before the district court, just four are properly before us.¹ We will affirm the SSA's conclusions unless the ALJ applied incorrect legal standards or her findings were not supported by substantial evidence in the record. Wright-Hines v. Comm'r of Soc. Sec. , 597 F.3d 392, 395 (6th Cir. 2010). Substantial evidence supports a decision if "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" backs it up. Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. of N.Y. v. N.L.R.B. , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Thus, a decision supported by substantial evidence must stand, even if we might decide the question differently based on the same evidence. Wright-Hines , 597 F.3d at 395. It is not our role to "try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Walters v. Comm'r of Soc. Sec. , 127 F.3d 525, 528 (6th Cir. 1997) (quoting Garner v. Heckler , 745 F.2d 383, 387 (6th Cir. 1984) ).

A. Substantial Evidence Supports the ALJ's Finding that Biestek's Medical Condition Did Not "Medically Equal" the Listing

Biestek contends the ALJ incorrectly found that he did not meet or medically equal the back-pain-related impairment listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A1, § 1.04(A).² The impairment must last for at least twelve months to meet the terms of the listing. Id. at § 1.00(B)(2)(a). The ALJ determined Biestek did not meet or medically equal the listed impairment because Biestek "lack[ed] the requisite motor and sensory deficits, and there [was] no evidence of spinal arachnoiditis or spinal stenosis resulting in pseudoclaudication." The ALJ relied significantly on agency-appointed expert Dr. Frank L. Barnes's opinion that Biestek's physical condition neither met nor equaled a medical listing while assigning minimal weight to the opinions of Biestek's retained expert, Dr. Alexander J. Ghanayem.

Biestek claims that he "medically equaled" the listing because he displayed all the required criteria at one point or another during the relevant period, even if not concurrently or consistently over twelve months. He also argues that Dr. Ghanayem offered analysis and explanations superior to the allegedly flawed testimony of Dr. Barnes, so that reliance on Barnes's testimony cannot constitute "substantial evidence" in support of the ALJ's opinion.

1. The ALJ Reasonably Found Biestek Did Not "Medically Equal" the Listing

Biestek argues that "medically equaling" the listing does not require all symptoms to be present consistently for a twelve-month period, and that to impose such a requirement would erase the distinction between "meeting" and "medically equaling" a listing. He maintains that displaying different deficits at different times over the course of twelve months is enough to satisfy the duration requirement.

As the Commissioner points out, however, medical equivalency is not a refuge for claimants who show only intermittent signs of impairment. The Commissioner's own regulation makes clear that equivalency exists where a claimant's impairment "is at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 404.1526(a) (emphasis added); see also Kidd v. Colvin , No. CV 115-207, 2017 WL 914061, at *4 (S.D. Ga. Feb. 2, 2017) (magistrate's report and recommendation) (finding a failure to meet the duration requirement where the claimant's back pain was only demonstrated by "a handful of abnormal findings scattered throughout the record"), adopted in full sub nom. Kidd v. Berryhill , No. CV 115-207, 2017 WL 901896, at *1 (S.D. Ga. Mar. 7, 2017). Medical equivalency does not relieve claimants of the need to demonstrate the long-term nature of an impairment. The Commissioner's regulation allows for variation in the number, type, or severity of the claimant's conditions, so long as the claimant's overall impairment is "at least of equal medical significance" to a listed impairment. 20 C.F.R. § 404.1526(b)(ii). The regulations make no provision, however, for claimants whose condition is reasonably found to be sporadic or intermittent.

2. The ALJ Reasonably Relied on Dr. Barnes's Testimony

Dr. Barnes noted the absence of positive straight leg-raising³ on most examinations, and that numbness, reflex change, and atrophy were not consistently present over a twelve-month period. In Barnes's opinion, Biestek did not meet or equal any listing. Furthermore, the ALJ noted that MRI images in the record show "only mild-to-moderate degenerative changes with no more than mild stenosis."

Biestek's expert, Dr. Ghanayem, assessed the evidence differently, concluding that Biestek more than met or medically equaled the terms of the listing. The ALJ gave "little weight" to Dr. Ghanayem's opinion, however, due to inconsistencies between Dr. Ghanayem's assessments and other objective medical evidence in the record. Dr. Ghanayem's opinion of Biestek's condition is in tension with the findings of multiple radiologists interpreting multiple MRIs over several years.

Additionally, we note other evidence showing Biestek had, at best, inconsistent back issues during the period he was under the care of treating physician Dr. Howard Wright. Some appointment notes do not reference back pain, only reporting Biestek as having "normal gait and station," while others only a short time later mention some pain.

Dr. Ghanayem also attempted to explain the inconsistent straight-leg raising test results. According to Dr. Ghanayem, if the underlying nerve condition becomes chronic and persists for a significant period, the affected nerves can become so damaged and desensitized that a person can pass the test. Dr. Barnes presented an alternative explanation: in some cases, a patient's spinal injuries heal by themselves, resulting in increased mobility sufficient to pass the straight-leg raising test.

Biestek argues that the ALJ inappropriately credited Dr. Barnes's testimony over Dr. Ghanayem's opinions. But just because Dr. Ghanayem offered explanations that could reconcile elements of the objective medical record with Biestek's claims does not mean that the ALJ was required to accept those explanations. The ALJ faced dueling opinions from two highly qualified medical experts and found Dr. Barnes's testimony more credible after assessing how well his testimony fit with the objective medical record—a determination she was fully empowered to make. See Crum v. Sullivan , 921 F.2d 642, 644 (6th Cir. 1990) ("The [Commissioner], and not the court,...