Terri Louden v. Comm of Social Security

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication. Boyce F. Martin , Jr., Circuit Judge; Helene N. White, Circuit Judge and Peter C. Economus, U.S. District Judge, NDOH.

Case: 11-6307

Document: 006111519696

Filed: 12/04/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1245n.06

FILED

No. 11-6307

Dec 04, 2012

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TERRI LOUDEN,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

Before: MARTIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*

PER CURIAM. Terri Louden, who is represented by counsel, appeals a district court order
denying her application for supplemental security income benefits.
On July 19, 2007, Louden filed an application for supplemental security income benefits
alleging that she was disabled due to degenerative disc disease in the lumbar region of the spine;
migraine headaches; chronic neck pain, secondary to degenerative disc disease in the cervical region
of the spine; borderline intellectual functioning; illiteracy; depression; anxiety; and pain disorder.
Her application was denied initially and upon reconsideration.
Louden then sought review before an administrative law judge (ALJ). Following a hearing,
the ALJ denied Louden’s application for benefits finding that Louden could perform her previous
type of work as a parking attendant. See 20 C.F.R. § 416.920(f); Studaway v. Sec’y of Health &
Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987). The ALJ also found that Louden could perform

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The Honorable Peter C. Economus, United States Senior District Judge for the Northern
District of Ohio, sitting by designation.

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Document: 006111519696

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No. 11-6307
-2a substantial number of other jobs in the national economy. The Appeals Council declined to review
the ALJ’s decision and the district court subsequently affirmed the Commissioner’s denial of
benefits.
On appeal, Louden argues that the ALJ’s hypothetical questions to the vocational expert at
the hearing were not supported by substantial evidence and that the vocational expert’s testimony
conflicted with the Dictionary of Occupational Titles. The district court’s judgment is reviewed de
novo. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010). Our review “is limited to
determining whether the Commissioner’s decision is supported by substantial evidence and was
made pursuant to proper legal standards.” Id. (internal quotation marks omitted). “If the
Commissioner’s decision is based upon substantial evidence, we must affirm, even if substantial
evidence exists in the record supporting a different conclusion.” Id.
Consultative psychologist Mark Kroger examined Louden on only one occasion for the
purposes of Louden’s disability application. Because Kroger was not a treating physician, his
opinion was not entitled to significant weight. See 20 C.F.R. § 416.927(c)(2). However, the ALJ
did afford Kroger’s opinion substantial weight. The ALJ explained that he included in Louden’s
residual functional capacity assessment the mental limitations described by Kroger.
The applicable regulations also permitted the ALJ to consider the opinions of Drs. Jan
Jacobson and Edward Stodola. These doctors simply examined the medical evidence before the
Commissioner. See 20 C.F.R. § 416.927(e). Although Louden contends that there is no evidence
that these consulting physicians examined the entire record, references to Kroger’s findings indicate
that Dr. Jacobson did in fact review Louden’s mental health evaluation.
The ALJ’s hypothetical questions to the vocational expert considered all of Louden’s
conditions that were supported by objective medical evidence. Based on the ALJ’s hypothetical
questions, the vocational expert testified that Louden could perform her previous position as a

Case: 11-6307

Document: 006111519696

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No. 11-6307
-3parking attendant. The vocational expert also stated that Louden could work as a surveillance
monitor and as an entry level assembler.
Louden contends that the vocational expert’s testimony conflicted with the Dictionary of
Occupational Titles because Louden failed to meet certain requirements of the parking attendant and
surveillance monitor positions as described by the Dictionary of Occupational Titles. The ALJ
satisfied his burden by asking the vocational expert if her testimony was consistent with the
Dictionary of Occupational Titles. See Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 858 (6th Cir.
2010). The vocational expert stated that her testimony was consistent with the Dictionary of
Occupational Titles. Louden has the burden of proving that she is unable to perform her previous
type of work. Id. at 855; Studaway, 815 F.2d at 1076. Louden’s attorney had the opportunity, but
failed to cross-examine the vocational expert regarding her position that her testimony was consistent
with specific provisions of the Dictionary of Occupational Titles. Accordingly, the vocational
expert’s testimony constituted substantial evidence that Louden could perform her past relevant work
as a parking attendant.
The district court’s judgment is affirmed.