PLUMMER v. COLVIN

Filing 31

ORDER - For reasons explained in this Order, The Magistrate Judge must affirm the decision of the Acting Commissioner in this case. Signed by Magistrate Judge William G. Hussmann, Jr., on 3/24/2014.(NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

KATHY JO PLUMMER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security,
Defendant.

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2:13-cv-208-WGH-WTL

ORDER AFFIRMING THE
ACTING COMMISSIONER’S DECISION
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, on the Plaintiff’s Complaint (Dkt. 1), the Plaintiff’s
supporting briefs (Dkts. 15, 26), and the Defendant’s brief in opposition (Dkt.
22). The Magistrate Judge conducted oral argument on March 13, 2014.1
The Magistrate Judge, being duly advised, finds as follows:
Issue 1: Did the ALJ error when he concluded that Plaintiff, Kathy Jo
Plummer, had no medically determinable mental impairment?
At pages 45 and 46 of the administrative record (“Record”), the ALJ
concluded that while the Ms. Plummer initially had significant difficulties in
cognitive function immediately following a cerebral hemorrhage in October
2009, she made a good recovery, and she currently has no significant residual
The parties consented to Magistrate Judge jurisdiction (Dkts. 6, 8), and an Order of
Reference was entered by District Judge William T. Lawrence (Dkt. 11).

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cognitive effects. Although another ALJ might have decided this issue
differently, there is substantial evidence to support this finding. Specifically,
the consultative examination report of Dr. Brophy (R. 597-602), which was
conducted in May 2010, is fairly read by the ALJ to determine that Ms.
Plummer’s memory and fluency were still within the average range, and Dr.
Brophy does express that Ms. Plummer had essentially regained her formal
level of functioning with some difficulty remembering various acronyms that
nurses tend to use. The ALJ’s finding is also supported by the records from
Psychologist Ann Lovko. (Dkt. 637-50.) The ALJ also discussed and
considered that a CT scan conducted in April 2011 was compared to a study
from November 2009 and found no change in the brain and no new focal
abnormalities. (See ALJ’s Discussion at R. 48-49, and Study at R. 718.) These
pieces of evidence are substantial evidence to support the ALJ’s finding.
Issue 2: Is the ALJ’s residual functional capacity determination properly
articulated?
The ALJ concluded that Ms. Plummer had the residual functional
capacity to perform light work as defined in the Regulations, except that she is
limited to standing and/or walking four hours in an eight-hour work day,
sitting for four hours in a work day, may not sit more than 30 to 40 minutes at
one time, and must be given a corresponding sit/stand option. In pertinent
part, the ALJ also found that Ms. Plummer had need for an assistive device or
rail to perform tasks requiring balancing, including standing, and is unable to
perform tasks requiring repetitive rotation of the neck.

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In coming to this conclusion, the ALJ assigned significant weight to the
opinion of a consultative examiner, Dr. Wang (R. 660-66), and a state agency
reviewing physician, Dr. Sands (R. 133). A review of those two opinions finds
that they constitute substantial evidence for that residual functional capacity
finding.
Ms. Plummer’s primary argument in this case is that the ALJ should
have found her residual functional capacity compromised by mental
impairments. However, as discussed in the prior section of this Order,
substantial evidence supported the ALJ’s conclusion, and there is therefore no
error in failing to incorporate those mental limitations within the residual
functional capacity determination made in this case.
Issue 3: Did the ALJ err in his discussion and treatment of the opinion of
Cindy Greentree, a physical therapist?
At page 50 of the Administrative Record, the ALJ discussed a functional
capacity evaluation conducted in June 2011 by Physical Therapist Cindy
Greentree (R. 728-35).
In this case, the ALJ did not explicitly discuss Cindy Greentree’s
functional capacity examination, which seemed to indicate that Ms. Plummer
could stand for less than two and one-half hours per work day. However, an
overall review of Ms. Greentree’s report does show that, while Ms. Plummer
could stand for less than two and one-half hours, she could walk between two
and one-half and five and one-half hours. The Magistrate Judge believes that
the ALJ did not misread or cherry-pick Ms. Greentree’s report and that, as a

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whole, it is fairly read to support an ability to perform light physical demands
consistent with the residual functional capacity that the ALJ found.
Issue 4: Did the ALJ properly consider evidence of arthritis in the
cervical spine and knees?
The Magistrate Judge concludes that the ALJ’s discussion at page 51 of
the Record reflects his recognition of arthritic degeneration in the cervical spine
and bilateral knees. In recognizing these problems, the ALJ included a further
limitation of activities, including the sit/stand option and the limitation to
avoid repetitive cervical rotation, among other limitations. The Magistrate
Judge is unable to reweigh this evidence and finds no error in the ALJ’s
discussion.
Issue 5: Was the ALJ’s credibility assessment patently wrong?
An ALJ’s credibility determination must stand unless it is patently
wrong. Craft v. Astrue, 539 F. 3d 668, 678 (7th Cir. 2008). The ALJ’s
credibility assessment is found at pages 50 and 51 of the Record. The ALJ did
not specifically address Ms. Plummer’s direct testimony at the hearing.
However, the crux of Ms. Plummer’s argument is that her description of her
mental condition should be accepted. As previously discussed, the ALJ was
entitled to conclude that the limitations were not severe based on the medical
information which he discussed from Dr. Brophy and Dr. Lovko. The ALJ, in
discussing Ms. Plummer’s credibility, did rely on the medical descriptions of
Ms. Plummer given by Dr. Berrend, Dr. Brophy, and Dr. Wang. While another
ALJ could have concluded to the contrary, this Magistrate Judge cannot
conclude that the ALJ was patently wrong in his credibility assessment.
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Issue 6: Is there substantial evidence to support that Ms. Plummer is
capable of performing past relevant work?
The ALJ found at page 51 of the Record that Ms. Plummer could perform
her past relevant work as a Nursing Service Director and Utilization Review
Coordinator. It is interesting to note that the Vocational Expert’s testimony
and the ALJ’s findings in this case find that the prior relevant work as actually
performed by Ms. Plummer was at the medium level of exertion. However, the
Dictionary of Occupational Titles characterizes the type of work as light
exertional work. A job constitutes appropriate past relevant work if the
claimant can perform it as it is performed in the national economy. This likely
is unfair to Ms. Plummer, but the jobs identified by the ALJ do constitute
appropriate past relevant work.
Conclusion
In this case, Ms. Plummer is a person who has worked hard for many
years, achieved much in her educational and professional endeavors, and has a
vocational record to be proud of. She clearly endured a serious medical
condition. She has also, according to at least some medical professionals,
overcame a very difficult aneurysm and returned very close to her prior level of
functioning. Her concern that some degree of difficulty remains with returning
to her prior vocational level because residual difficulties with concentration is
understandable. It is somewhat unfair to her that she may not be able to
return to the jobs she performed in the past as they are actually performed.
However, the relatively limited scope of review given to this Court does not
allow the Magistrate Judge to conclude that the ALJ was incorrect when he
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concluded that she did not have a severe mental impairment in this case based
on the medical records before the ALJ. Once that conclusion is reached, the
methodology employed by the ALJ was not incorrect as a matter of law. The
Magistrate Judge must, therefore, affirm the decision of the Acting
Commissioner in this case, though it is certainly not emotionally satisfying to
do so.
SO ORDERED the 24th day of March, 2014.

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Served electronically on all ECF-registered counsel of record.

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