Glass v. SSA

Filing 19

OPINION & ORDER, 1) denying 17 MOTION for Summary Judgment by Carla Maureen Glass 2) granting 18 MOTION for Summary Judgment by SSA 3) decision of SSA is affirmed pursuant to sentence four of 42 USC 405(g) as it was supported by substantial evidence and was decided by proper legal standards 4) a judgment will be entered with this order. Signed by Judge Karen K. Caldwell on 8/1/14.(SMT)cc: COR

.Eaatern District ofKentucky

F I LED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND

AUG - f 201%
AT LEXINGTON
ROBERT R. CARR

CLERK U.S. DISTRICT COURT

CIVIL ACTION NO. O:lS-89-KKC

CARLA MAUREEN GLASS,
Plaintiff,

v.

OPINION & ORDER

CAROLYN COL\'1N,

Acting Commissioner of Social

Security,

Defendant.

*** *** ***

The plaintiff, Carla Maureen Glass, brought this action pursuant to 42 U.S.C. § 405(g)
to obtain judicial review of an administrative decision of the Commissioner of Social
Security denying his claim for a period of disability and disability insurance benefits. The
Court, having reviewed the record, will affirm the Commissioner's decision, as it is
supported by substantial evidence.
FACTU~ANDPROCEDURALBACKGROUND

Carla Glass filed her claim for benefits on April 2, 2012, alleging a disability beginning
January 1, 2012. Her claims were initially denied on July 17, 2012 (AR 128), and upon
reconsideration on August 31, 2012. (AR 135, 138). Glass then filed a written request for a
hearing before an Administrative Law Judge ("AW"). After the hearing, the ALJ issued an
unfavorable opinion on April 5, 2013. (AR 16).
At the time of the alleged onset of disability, Glass was 31 years old with a high school
education and completed one year of college courses. (AR 27). She claims to be disabled due
to her bipolar disorder, chronic constipation, pain and grinding sensation in her knees due

to mild osteoarthritis and patellofemoral syndrome, complications from a pulmonary
embolism, substance abuse, a pinched nerve in her neck, difficulty standing, and poor
balance. Glass has a driver's license and uses it two to three times a week. (AR 40).
Glass describes a long history of treatment for mental health difficulties, particularly
her bipolar disorder and depression. She has been a patient at Pathways, Inc. off and on for
several years, during which she has experienced both highs and lows. For example, on April
25, 2012, the plaintiff's treatment notes indicates she was "pleasant and cooperative." (AR
611). The note further described her mood as appropriate to the situation. (AR 611).
Plaintiff also denied any suicidal thoughts or ideation. (AR 611). Treatment notes from
August of 2012 indicate Glass felt well and had a "good energy level." (AR 458).
!'/otably, Glass takes several medications that she claims cause negative side effects. In
her hearing with the AlJ, she described taking Divalproex, Warfarin, Omeprazole,
Bupropion Hydrochloride, Paroxetine, Linzess, and Risperidone. She testified that the
medication is effective and helps her various conditions. (AR 53). However, Glass also
complains of side effects from these medications. She claims to suffer from insomnia,
constipation, and shakinesslbalance problems. (AR 53, 65). Despite such complaints during
her hearing, Glass points to no objective medical evidence related to these alleged side
effects. In fact, Glass stated in her hearing that she has not informed her healthcare
providers that she is experience some of these side effects. CAR 66 ("Q: Have you told
Pathways that you think [your balance problems] might be a side effect? A: No,

r have

not."»).
Glass also testified at her hearing that she is able to perform a variety of regular
household chores. She stated that she can cook, do the dishes, vacuum, mop, pay bills,
clean, do laundry, and take out the trash. (AR 61-62). She also confirmed she goes grocery
2

shopping, goes out to visit people, uses a computer, enjoys pottery, and goes horseback
riding. (AR 62-64), Glass testified that she takes care of three dogs and has a driver's
license, which she uses to drive two to three times a week, (AR 40, 64),
In determining whether a claimant has a compensable disability under the Social
Security Act (the "Act"), the regulations provide a five· step sequential process which the
ALJ must follow, 20 C.F.R § 404.1520(a)-(e); see Walters v. Comm'r of Soc. Sec., 127 F.3d
525, 529 (6th Cir. 1997). The five steps, in summary, are as follows:
(1) If the claimant is currently engaged in substantial gainful activity, she

IS

not

disabled.
(2) If the claimant is not doing substantial gainful activity, her impairment must be
severe before she can be found disabled.
(3) If the claimant is not doing substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period of at
least twelve months, and his impairment meets or equals a listed impairment, the
claimant is presumed disabled without further inquiry.
(4) If the claimant's impairment does not prevent her from doing past relevant work,
she is not disabled.
(5) Even if the claimant's impairment does prevent her from doing past relevant work,
if other work exists in the national economy that accommodates her residual

functional capacity and vocational factors (age, education, skills, etc.), she is not
disabled.
Id.
The burden of proof is on the claimant through the first four steps of the process to
prove that she is disabled. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If the ALJ
3

reaches the fifth step without finding that the claimant is not disabled, then the burden
shifts to the Commissioner to consider the claimant's residual functional capacity, age,
education, and past work experience to determine if she could perform other work. If not,
she would be deemed disabled, 20 C,F.R. 404.1520(:1). Importantly, the Commissioner only
has the burden of proof on "the fifth step, proving that there is work available in the
economy that the claimant can perform." Her v. Comm'r of Soc. Sec., 203 F.3d :388, 391 (6th
Cir. 1999).
In this case, the ALJ began his analysis at step one by determining that the claimant
has not engaged in substantial gainful activity since January 1, 2012, the alleged onset
date. (AR 21). At step two, the ALJ determined that Glass suffers from the following severe
impairment: bipolar disorder. The ALJ found that the claimant's other alleged impairments
were not severe. In the third step, the ALJ found that Glass does not have an impairment
or combination of impairments that meets or medically equals the severity of one of the
listed impairments. (AR 22).
At step four, the ALJ found that based on consideration of the entire record, Glass "has
the residual functional capacity to perfurm a full range of work at all exertionallevels but
with the following nonexertionallimitations: limited to simple, routine, and repetitive tasks
that are performed in a work environment free of fast paced production requirements
involving only simple, work-related decisions with few, if any, work place changes." (AR 24).
The ALJ further found that Glass "should have only occasional interaction with the public;
and only occasional supervision." (AR 24). Pursuant to his determination of the claimant's
residual functional capacity, the ALJ found that Glass is able to perform past relevant work
as a hotel maid.

4

.Although the ALJ concluded that Glass could perform past relevant work, he went on to
step five and determined that, as an alternative finding, there are other jobs that exist in
significant numbers in the national economy that the claimant can perform. (AR 27). This
conclusion was based on consideration of the claimant's age, education, work experience,
and residual functional capacity as well as the testimony of the vocational expert. CAR 27­
28}.
The Appeals Commission subsequently denied Glass's request for review on June 27,
2013. Glass has exhausted her administrative remedies and filed a timely action in this
Court. This case is now ripe for review under 42 U.s.C. § 405(g}.

GENERAL STANDARD OF REVIEW
The decision of the Commissioner must be supported by substantial evidence. Varley v.
Secy of Health and Human SeruB., 820 F.2d 777, 779 (6th Cir. 1987). Once the decision of

the Commissioner is final, an appeal may be taken to the United States District Court
pursuant to 42 U.S.C. § 405(g}. Judicial review of the Commissioner's decision is restricted
to determining whether it is supported by substantial evidence and was made by proper
legal standards. See Cutlip v. Secy of Health and Human SeruB., 25 J!'.3d 284, 286 (6th Cir.
1994). "Substantial evidence" is defined as "more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Id. In reviewing the decision of the Commissioner, courts are not
to conduct a de novo review, resolve conflicts in the evidence, or make credibility
determinations. See id. Rather, the Court must affirm the Commissioner's decision so long
as it is supported by substantial evidence, even if the Court might have decided the case
differently. See Her, 203 F.3d at 389-90. However, the Court must review the record as a

5

whole, and must take into account whatever in the record fairly detracts from its weight.

Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
ANALYSIS
Glass raises three arguments as to how the ALJ committed error in evaluating her
claim for disability benefits. First, Glass argues that the ALJ erred as a matter of law in
finding that her status post pulmonary embolism with ongoing Coumadin treatment is not
a severe impairment under step two. Second, Glass argues that the ALJ erred in giving
little weight to the opinion of consultative examiner Alfred B. Adkins, and relying instead
on thE! opinions of non-examining state agency physicians who did not have access to the
complete record. Finally, Glass argues that the ALJ erred in relying on the testimony of the
vocational expert,

because

the

vocational expert's

opinions

were based on

an

inaccurate/incomplete explanation of her residual functional capacity. All of these
arguments lack merit.
1. The ALJ Did Not Err in Determining Glass's Severe Impairments

Glass argues that ALJ erred when he failed to find that her status post pulmonary
embolism with ongoing Coumadin treatment constituted a severe impairment at Step Two.
Even if the ALJ's finding on this matter was in error, such error would be harmless. An
ALJ's finding that an impairment is not severe at Step Two is not reversible error if the
ALJ finds the claimant has at least one other severe impairment. See Maziarz v. Sec'y of

Health and Humans Servs., 837 F.2d 240, 244 (6th Cir. 1987). Here, the ALJ found that
Glass's bipolar disorder constituted a severe impairment and it is therefore immaterial that
he failed to make such a finding regarding the pulmonary embolism.
But the Court nonetheless finds that ALJ made no such error and his finding was
supported by the substantial evidence. The ALJ reviewed Glass's claim regarding her
6

status post pulmonary embolism at step two. He noted that "the pulmonary embolism
resolved within one year with Coumadin" and "does not cause significant work related
limitations at this time." (AR 22). Glass does not point to a single piece of medical evidence
supporting her claim that her status post pulmonary embolism presents an ongoing
impairment, much less one that is severe. She states without providing evidentiary support
that she is unable to work around machinery. (DE 17-1, at 7-8). She states that she cannot
work as a hotel maid because she is unable to work around machinery, ignoring that this
line of work does not involve moving mechanical parts, electric shock, or other hazards that
might be related to machinery or sharp objects. See U.S. Dep't of Labor, Dictionary of

Occupational Titles (4th Ed. 1991), § 323.687-014 Cleaner, Housekeeping, 1991 WL 672783.
In short, Glass argues that the ALJ's finding was in error without providing any objective
medical evidence or legal argument to support her claim other than to assert conclusions
plainIy contrary to the record and law. Her arguments on this issue are without merit and
the Court finds the ALJ's determination of her severe impairments is supported by
substantial evidence.

2. The ALJ Did Not Err in Evaluating the Opinions of the Medical Experts
The second alleged error is in regard to the ALJ's assessment of the medical opinions of
Dr. Alfred B. Adkins, a consultative examiner. Dr. Adkins provided a medical opinion as a
consultative psychologist, and examined Glass on June 7, 2012. (AR 481-85). He found that
Glass is "likely to experience no impairment regarding the ability to understand, retain,
and follow instructions. She is likely to experience no impairment regarding the ability to
perform simple repetitive tasks. She is likely to experience marked impairment regarding
the ability to relate to others including fellow workers and supervisors." (AR 484-85). And
he further found "she is likely to experience marked impairment regarding the ability to
7

adapt the workplace." (AR 485). The ALJ, however, gave little weight to Dr. Adkins'
assessment, finding instead that it is "inconsistent with the overall objective medical
evidence." (AR 26). Specifically, the ALJ noted that Dr. Adkins' assessment was based
solely on the claimant's subjective complaints, which including statements about seeing
deceased relatives. CAR 26, 483). But claims of such hallucinations appear nowhere else in
her treatment history. Dr. Adkins also observed that Glass "gave information freely and
cooperatively," and "[h]er affect and behavior were appropriate for the situation and
environment." CAR 483).
The ALJ's decision to give Dr. Adkins' opinion little weight was not in error. Medical
opinions must be evaluated according to a particular regulatory framework. See 20 C.F.R.

§§ 404.1527, 416.927. Significantly, the ALJ should give greater weight to medical opinions
that are supported by the objective medical evidence and consistent with the record as a
whole. See 20 C.F.R. §§ 404. 1527(c)(3), 416.927(c)(3). Medical opinions which are not
supported by objective evidence and are not consistent with the record as a whole are
properly discounted.
Here, the AL,J specifically noted two key problems with Dr. Adkins' assessment: it was
based only on subjective medical evidence and it was inconsistent with the record as a
whole. Glass contends that it was improper for the ALJ to discount his opinion solely
because it was based on subjective evidence. She also argues that the ALJ improperly
claimed it was inconsistent with the record as a whole without citing to any particular
evidence. Both of Glass's claims are in error. First, while it's true that the ALJ should not
reject psychiatric evidence solely because of the imprecision associated with psychiatric
medicine, see Blankenship v. Bowen, 874 F.2d 1116, 1120 (6th Cir. 1989), the ALJ did not
do that in this case. His finding regarding the subjective nature of the evidence was coupled
8

with the fact that the sUbjective evidence was inconsistent with the overall record,
including a long history of the plaintiffs mental health treatment records. (AR 26). This
finding is proper under §§ 404. 1527.(c)(a) and 416.927(c)(a).
Glass is also incorrect in alleging that the ALJ erred by not citing to specific portions of
the record when he made his finding that Dr. Adkins' assessment was inconsistent with the
overall medical evidence. The ALJ stated that her claims of hallucinations during her visit
with Dr. Adkins were inconsistent with her overall treatment history. He stated that she
"never mentioned such hallucinations during treatment." (AR 26). Clearly it is impossible to
cite to a specific portion of the record when the ALI is claiming that such evidence does not

ex;st. In this case, failing to make specific citations cannot be error. Moreover, if Glass
believes the finding was wrong, she is free to make clear where the ALJ erred. This court
\vill not "formulate arguments on [Glass's] behalf, or [1 undertake an open'ended review of
the entirety of the administrative record to determine (i) whether it might contain evidence
that arguably is inconsistent with the Commissioner's decision, and (ii) if so, whether the
Commissioner sufficiently accounted for this evidence." Hollon ex rei. Hollon

L'.

Comm'r of

Soc. Sec., 447 F.ad 477, 490-91 (6th Cir. 2006). "Vhile she alleges that the ALJ erred by
failing to cite a portion of the record (which he found does not exist), Glass herself cites no
medical evidence contradicting the ALJ's finding.
Additionally, the record provides ample support for the ALJ's finding regarding Dr.
Adkins' medical opinion. Dr. Adkins found that Glass had marked impairments with her
ability to relate to others and adapt to workplace change. But Dr. Adkins' own assessment
found she was cooperative and gave information freely (AR 483). Moreover, Glass's
treatment history indicates she often had a normal mood and cooperative attitude. (AR

9

605). For all of the above-stated reasons, the Court finds that the ALJ's decision to give Dr.
Adkins' medical assessment little weight is supported by substantial evidence.
Glass also contends that the ALJ erred in giving more weight to the non-examining
state agency physician who did not have access to the complete medical/psychiatric record.
The ALJ examined the opinion of Dr. Jane Brake, a non·examining state agency physician,
noting that she found "the claimant has a moderately limited ability to maintain attention
and concentration for extended periods; interact appropriately with the general public;
accept instructions and respond appropriately to criticism from supervisors, but retains the
ability to attend, concentration [sic], and persist during the completion of simple and
routine tasks." (AR 26 (citing Exhibits 2A, 6A».
Glass's alleged error comes in two parts: she claims that the non-examining physician
Dr. Brake did not have access to the complete record, and that her assessment was based
on statements by Glass that were inconsistent with the record. First, Glass gives no
explanation regarding her claim that Dr. Brake did not review the complete record. She
merely asserts this claim, without support, and cites an inapplicable district court case for
support. See Jones v. Astrue, 808 F. Supp. 2d 993, 998 (E.D. Ky. 2011) (stating that when
an ALI relies on a non-examining physician over a treating source, "the non-examiner
should have reviewed a complete record").
Second, Glass is incorrect in asserting that the ALJ should not have relied on Dr.
Brake's assessment in lieu of contrary information provided by third parties. Dr. Brake's
analysis relied in part on Glass's own statements that she "reported getting along well with
authority." (AR 119). Glass contends that Brake's reliance on this statement was in error
because it is contradicted by "third party statements in the record, the multiple short term
jobs she held, and her therapist's repeated observations regarding her limited insight into
10

her mental health issues." (DE 17-1, at 10-11). First, Glass's treatment history affirms the
self-reported statement by Glass. Treatment notes consistently describe Glass as "[r]eality
based in short conversation." (AR 629, 630, 632, 635) (describing her attitude and demeanor
as good, pleasant, stable, and cooperative).
Glass also points to statements made by her sister in an affidavit that "indicates Carla
has little personal insight into her individual situations." (DE 17-1, at 11). The ALJ
specifically addressed the statements by Glass's sister and found them incredible. (AR 26).
The ALJ stated th at her "report is inconsistent with the overall evidence that indicates the
claimant has a driver's license and drives two to three times a week; attends to her own
personal needs; takes care of her four.year·old daughter; cooks; cleans the house; vacuums;
does the laundry; shops for groceries; and takes care of her three dogs," (AR 26), The ALJ
provided specific reasons for discounting the evidence provided by Glass's sister, and
therefore made no error in relying on the contradictory report by Dr. Brake, All of this
evidence is consistent with Dr. Brake's assessment, and the ALJ did not err in giving
weight to the non·examining state agency physician.
In sum, the ALJ's decision to give little weight to Dr, Adkins' assessment and greater
weight to the non-examining state agency physicians is supported by the substantial
evidence. Dr. Adkins' assessment was based on only subjective evidence and was
inconsistent with the overall record, The state agency physicians, specifically Dr, Brake's
assessment identified by Glass in her motion for summary judgment, were consistent with
the record as a whole. Accordingly, the ALJ did not err in assessing these opinions,

3. The ALJ Did Not Err in Relying on Testimony of the Vocational Expert
Glass's final argument is that the vocational expert relied on an incomplete/inaccurate
report of her residual functional capacity, and it was therefore error for the ALI to rely on
11

the expert's finding that a significant number of jobs exist in the national economy that
Glass could perform. Specifically, Glass argues that "the VE [sic] testimony in response to
the ALJ's hypothetical which did not include an accurate description of Carla's medication
side effects" is an improper basis to conclude that Glass is capable of performing work in
the national economy. (DE 17-1, at 12). Glass notes that her residual functional capacity
"did not include any limitations regarding risk cutting herself as a result of anticoagulant
therapy, or psychiatric medication side effects such as dizziness or confusion on her ability
to work around moving machinery or objects which pose a risk of bleeding if she should
fall." (DE 17·1, at 13). Moreover, she states that "[t]here were no limitations regarding
Carla's ability to balance, stoop, kneel or reach, all positional activities which could cause
her to lose balance or become dizzy." (DE 17·1, at 13). Finally, Glass again notes that her
RFC "included no 'marked' restriction of her ability to relate to fellow workers and
supervisors or 'adapt to the workplace.'" (DE 17·1, at 13).
These arguments lack merit. To begin, Glass's arguments regarding a marked
restriction on her ability to relate to fellow workers and supervisors has been discussed
above. She relies on the assessment of Dr. Adkins for claiming the ALJ's findings were in
error, and as discussed above, the ALJ's rejection of Dr. Adkins' medical opinion is
supported by substantial evidence.
Glass's second argument-that the Al.,,] failed to properly account for the adverse side
effects of her medication-is similarly without merit. It is not error for an ALJ to not
include adverse side effects of medication in asseSSing a claimant's residual functional
capacity when the claimant fails to provide objective medical evidence demonstrating she
suffers from such side effects. See Essary v. Comm'r of Soc. Sec., 114 Fed. App'x 662, 665-66
(6th Cir. 2004) ("Although [the claimant] testified that she suffered from dizziness and
12

drowsiness as a result of her medications, [the claimant's) medical records make no
indication that [the claimant) reported such side effects to any of her physicians."), Here,
Glass provides only subjective testimony regarding her adverse side effects and fails to
point the Court to anywhere in the record where objective medical evidence supports her
claims. In fact, Glass stated in her testimony she never advised her healthcare providers
that she was experiencing adverse side effects. (AR 66). Because there is no objective
medical evidence supporting her claims, the ALJ did not err in determining her residual
functional capacity. The vocational expert therefore had a complete and accurate basis for
her testimony. Glass's argument otherwise is meritless and the Court finds the ALJ's
determination of her ability to perform both past work and other work in the national
economy is supported by substantial evidence.

***
For the reasons stated above, IT IS ORDERED that:
1. The plaintiffs motion for summary judgment (DE 17) is DENIED;

2. The defendant's motion for summary judgment (DE 18) is GRANTED;
3. The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g) as it was supported by substantial evidence and was decided by
proper legal standards; and
4. A judgment will be entered contemporaneously with this order.

Dated this 1st day of August, 2014.

13