JOSEPH R. BRANON, Plaintiff-Appellant,
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY
BEFORE: MERRITT and CLAY, Circuit Judges; and STAFFORD, District Judge. [*]
MERRITT, Circuit Judge.
This is an appeal from a denial of social security disability benefits brought pursuant to Section 205(g) of the Social Security Act. 42 U.S.C. § 405(g). Because substantial evidence supports the denial of benefits, we affirm. The question turns on the credibility of the testimony of a vocational expert that significant jobs exist in the economy to accommodate plaintiff, whose disability has attributes of both "sedentary" and "light" work under the so-called "medical-vocational grids" used by the Social Security Administration.
Plaintiff Joseph Branon worked as a lineman for the telephone company for thirty years. Over the course of his employment, he developed gradually deteriorating back problems. Plaintiff filed for benefits in September 2006, claiming he became disabled on May 31, 2006, due to degenerative disc disease. He was 48 years of age at that time and had retired from his job at the telephone company after spending about six months on "light duty" due to his back problems. The record seems to indicate that he wanted the onset of his disability claim to coincide with his retirement from the telephone company. The disability claim was denied in August 2008, by which time plaintiff had turned 50 years old. After the Appeals Council denied review, plaintiff appealed to the district court. The district court remanded the case because the administrative law judge failed to acknowledge plaintiff's change in age category during the course of the proceedings. The district court noted that the change from the "younger person" category to the "approaching advanced age" category might make no difference in the outcome, but it must be considered by the administrative law judge. Branon v. Astrue, 2010 WL 4809041, at *1 (W.D. Ky. Nov. 18, 2010). On remand, the administrative law judge conducted another hearing that included testimony by a vocational expert, but no other new evidence was submitted. The administrative law judge acknowledged that plaintiff was now over 50 years of age, but again denied benefits. The Appeals Council denied review, and plaintiff appealed to the district court again. A magistrate judge issued a Report and Recommendation in favor of the Commissioner. The district court adopted the magistrate judge's Report and Recommendation in a summary order. This appeal followed.
On appeal, plaintiff makes essentially two broad arguments, First, he contends that the residual functional capacity determined by the administrative law judge is unsupported by the evidence and in violation of legal standards. His second argument is that the administrative law judge failed to use the medical-vocational grids "favorably" as required by the social security rules and further that if they had been applied correctly he would have been entitled to a determination of "disabled" at age 50 as a matter of law.
On appeal from a denial of benefits, we review a district court's decision de novo. Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990). However, we review the final decision of the Social Security Administration in this case the decision of the administrative law judge dated August 24, 2011 to determine whether the applicable legal standards were applied, and whether substantial evidence exists in the record to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
A claimant will be considered "disabled" under the Social Security Act if he meets two requirements. See 42 U.S.C. § 423(d). First, he must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Second, the impairment must be severe enough that he is unable to do his previous work and cannot, based on his age, education, and work experience, "engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2) (A). If the plaintiff cannot perform his past work, the burden shifts to the Commissioner to show that, considering the plaintiff's age, education, work experience, and residual functional capacity,  the plaintiff is capable of performing other work that is available in significant numbers in the national economy. 20 C.F.R. §§ 416.920(f), 404.1520(f); see Bowen v. Yuckert, 482 U.S. 137, 146, n.5 (1987).
A. Residual Functional Capacity
Based on his review of the entire record, including medical records, opinions of treating and non-treating physicians, and plaintiff's own testimony, the administrative law judge determined that plaintiff had the residual functional capacity to perform a limited range of light work. Plaintiff contends that the administrative law judge failed to adequately consider the opinions of his treating neurosurgeon, Sean McDonald, M.D., in reaching this finding.
Plaintiff sought treatment from Dr. McDonald starting in 2005. Dr. McDonald diagnosed lower back pain and lumbar radiculopathy and prescribed medication. Diagnostic tests showed possible disc herniation but no evidence of nerve root impingement. Plaintiff declined surgery or physical therapy preferring to stick with a home exercise program, medication and epidural steroid injections. Because plaintiff wanted to continue to work until his eligibility for retirement on May 31, 2006, and he was unable to continue in his work as a lineman, Dr. McDonald gave plaintiff a letter to give to his employer in the fall of 2005 that stated he could lift no more than five pounds frequently and 15 pounds occasionally, could not stay in one position more than 20 minutes, no working at heights and no repetitive bending or twisting at the waist. In December 2005, Dr. McDonald noted no significant changes ...