Howard v. SSA
MEMORANDUM OPINION & ORDER: For the foregoing reasons, it is ORDERED that the Plaintiff's Motion for Summary Judgment, R. 13 be DENIED, the Defendant Commissioner's Motion to Summary Judgment R. 14 be GRANTED, and that Judgment be entered affirming the final decision of the Commissioner. Signed by Magistrate Judge Edward B. Atkins on 7/2/2014.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
CIVIL ACTION NO. 0:13-CV-173-EBA
RONALD EUGENE HOWARD, JR.,
CAROLYN W. COLVIN,
Commissioner of Social Security Administration,
Plaintiff, Ronald Eugene Howard, Jr., brings this action under 42 U.S.C. § 405(g) to
challenge the Defendant Commissioner’s final decision denying his application for Supplemental
Security Income (SSI) and Disability Insurance Benefits. [Record No. 13]. This matter has been
referred to the undersigned to conduct all proceedings and order the entry of a final judgment in
accordance with 28 U.S.C. § 636(c). [Record No. 15]. Now ripe for decision on the parties’ crossmotions for summary judgment, and for the reasons set forth herein, the Plaintiff’s Motion for
Summary Judgment [Record No. 13] shall be denied, the Defendant’s Motion for Summary
Judgment [Record No. 14] shall be granted, and Judgment shall be entered affirming the final
decision of the Commissioner.
II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
On November 04, 2010, the Plaintiff filed an application for supplemental security income
and disability insurance benefits. [Tr. 181-194]. In this application, the Plaintiff alleged disability
since March 10, 2010. Id. In his Disability Report, Form SSA-3368, the Plaintiff claimed his work
ability was limited due to bronchiolits [sic.] obliterans organizing pneumonia, interstitial lung
disease and depression. [Tr. 228-230]. His claim was denied initially [Tr. 61-82], and on
reconsideration [Tr. 87-112]. After denial of his claim, Plaintiff requested a hearing in front of an
Administrative Law Judge (“ALJ”). [Tr. 127-128].
On September 24, 2012, a hearing was held before Administrative Law Judge Charlie Paul
Andrus. [Tr. 29-50]. The Plaintiff testified at the hearing, and was represented by Lucinda Jean
Cornett. [Tr. 29-50]. The ALJ also heard testimony from vocational expert Gina Baldwin. [Tr. 4549]. ALJ Andrus denied Plaintiff’s claim for benefits in a written decision dated October 03, 2012.
[Tr. 11-28]. In evaluating Plaintiff’s claim, the ALJ applied the five-step sequential evaluation
process to determine that he was not disabled. See 20 C.F.R. §§ 404.1520; 416.920. At the first
step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the date of his
application for benefits. [Tr. 16]. Next, the ALJ found that the Plaintiff has the following severe
impairments: chronic obstructive pulmonary disease, depression, and anxiety disorder. [Tr. 16].
At step three, the ALJ found that Plaintiff’s medically determinable impairments did not meet or
medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Tr. 167].
Before proceeding to the fourth step, the ALJ found that Plaintiff’s impairments left him with
the residual functional capacity (“RFC”) to perform the full range of medium work as defined by
the Regulations. [Tr. 17-22]. Specifically, with respect to his physical limitations, the ALJ described
Plaintiff’s residual functional capacity as follows:
Claimant has the residual functional capacity to perform the full range of medium
work as defined in 20 CFR 404.1567(c) and 416.967(c) except can never climb
ladders, ropes or scaffolds; cannot work in temperature or humidity extremes; must
avoid heights and open dangerous machinery; must avoid excessive dust and fumes;
limited to simple and routine work, but can concentrate in an object-focused setting;
can relate to supervisors and coworkers, but cannot have any public contact; and can
handle routine changes.
The fourth step of the analysis is to determine whether the Plaintiff’s residual functional
capacity would allow him to perform the requirements of his past relevant work. The ALJ
determined that the Plaintiff was unable to perform any past relevant work, See 20 C.F.R. §§
404.1565, 416.965. [Tr. 21]. At the fifth and final step, relying on the testimony of the Vocational
Expert (“VE”) and taking into consideration Plaintiff’s age, educational background, past relevant
work experience, and residual functional capacity, the ALJ must determine whether the Plaintiff is
capable of making a successful adjustment to work existing in significant numbers in the national
economy. See 20 C.F.R. §§ 404.159(a); 416.969(a). Based on the testimony of the Vocational
Expert, the ALJ held that, “[c]onsidering the claimant’s age, education, work experience, and
residual functional capacity, the claimant is capable of making a successful adjustment to other work
that exists in significant numbers in the national economy . . . .” [Tr. 24]. Based on these findings,
the ALJ determined that the Plaintiff was not under a “disability” as defined by the Social Security
Act, See 20 C.F.R. §§ 404.1520(g) and 416.920(g). [Tr. 24].
Following the adverse decision of the ALJ, the Plaintiff properly exhausted his
administrative remedies by appealing to the Social Security Appeals Council. [Tr. 7-10]. On appeal,
the Appeals Council affirmed the ALJ’s decision. [Tr. 1-6]. On December 08, 2013, Plaintiff
initiated the present action by filing his Complaint in the United States District Court for the Eastern
District of Kentucky. [Record No. 2]. In his Motion for Summary Judgment, the Plaintiff argues for
the reversal of the ALJ’s decision based on the Commissioner’s failure to support his findings with
substantial evidence as required by 42 U.S.C. § 405(g). [Record No. 19-1]. The Commissioner
responds that the ALJ’s decision should be affirmed, as it was reached applying the proper standards
and was supported by substantial evidence. [Record No. 14]. Following briefing, this matter, with
the parties’ consent, was referred to the undersigned to conduct all proceedings and order the entry
of a final judgment in accordance with 28 U.S.C. § 636(c). [Record No. 15].
III . STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a reviewing court “must affirm the Commissioner’s
conclusions absent a determination that the Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by substantial evidence in the record.”
Longworth v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (citations omitted). The scope
of judicial review is limited to the record itself, and the reviewing court “may not try the case de
novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Hogg v. Sullivan, 987
F.2d 328, 331 (6th Cir. 1993) (citations omitted). The Sixth Circuit has held that “substantial
evidence exists when a reasonable mind might accept the relevant evidence as adequate to support
a conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (citations
omitted). The limited nature of substantial evidence review prevents the reviewing court from
substituting its judgment for that of the ALJ. Rather, so long as substantial evidence exists, the
reviewing court should affirm the ALJ’s decision “even if there is substantial evidence in the record
that would have supported an opposite conclusion.” Longworth, 402 F.3d at 595 (citations omitted).
Substantial evidence is “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.” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted). “The substantial
evidence standard presupposes that there is a ‘zone of choice’ within which the [Commissioner] may
proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994)
The Plaintiff presents three arguments on appeal:
The ALJ erred by failing to consider all the Plaintiff’s impairments;
The ALJ erred by relying on an evaluation by a doctor who did not perform
any testing on the claimant; and
The ALJ erred by relying on two non-examiners.
[R. 13-1 at 2-3]. For the reasons discussed below, each of these arguments is without merit, and the
decision of the ALJ will therefore be affirmed.
1. The ALJ failed to consider all the Plaintiff’s impairments.
In his instant Motion for Summary Judgment, Howard argues that the ALJ erred by failing
to consider all of his ailments including shoulder, back, and ankle pain as well as migraine
headaches as severe impairments. [Record No. 13-1]. According to Plaintiff, “based upon the
medical evidence of record which reveals limited range of motion, and the testimony of Mr. Howard,
the ALJ should have considered these impairments as severe because do [sic.] place limitations on
the claimant’s activities.” [Id. at 9-10]. In opposition, the Commissioner correctly maintains that
substantial evidence supports the ALJ’s decision that the Plaintiff is not entitled to disability
Agency regulations stipulate that the ALJ is to consider all of the claimant’s symptoms,
including pain, but only to the extent those symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence. 20 C.F.R. § 404.1529(a). The ALJ is not
required to accept a claimant’s testimony regarding limitations and pain when such testimony is not
supported by the record. See Gooch v. Sec’y of Health & Human Svcs., 833 F.2d 589, 592 (6th Cir.
1987). If the ALJ does reject a claimant’s testimony as incredible, “he must clearly state his reasons
for doing so.” Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). The ALJ’s credibility
determination must be accompanied by a statement explaining the ALJ’s reasons. Social Security
Ruling 96-7p directs the ALJ to state “specific reasons for the finding on credibility, supported by
the evidence in the case record, [which] must be sufficiently specific to make clear to the individual
and to any subsequent reviewers the weight the adjudicator gave to the individual’s statement and
the reasons for that weight.” SSR 96-7p, “Policy Interpretation Ruling Titles II and XVI: Evaluation
of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements” 1996
WL 374186 at *4 (July 2, 1996).
The ALJ did in fact consider all of the Plaintiff’s symptoms including back and neck pain
as well as migraine headaches, he just did not find they constitute severe impairments. As required,
the ALJ made a finding specific to each one of these issues in his decision.
In regards to back pain the ALJ stated: “The claimant testified that he has low back pain that
radiates down his knees. He has trouble sitting and standing. He takes Advil or Motrin for his back,
which helps ease the pain. The claimant’s treating physician prescribes him Ibuprofen for his back
(Exhibit B16F). The undersigned finds the claimant’s back impairment does not constitute a severe
impairment because it is controlled with medication and there is no evidence that it causes him
significant work related limitations at this time.” [Tr. 17].
In regards to the migraine headaches the ALJ stated: “The claimant testified that he has
migraine headaches. He has about one to three headaches a month. The claimant’s physician
prescribes Maxalt for his migraine headaches (Exhibit 16F). Neurological examinations have been
normal (Exhibit B16F). A CT scan of the head was also normal (Exhibit B6F). The undersigned
finds no evidence that the claimant’s headaches cause him significant work related limitations at this
time (Exhibit B16 F).” [Id.].
In regards to the shoulder pain the ALJ stated: “The claimant testified that he has trouble
with his shoulder ‘going out’ on him. He indicated that he has numbness in his hands. The medical
records show the claimant’s physician prescribed him Medrol Dosepak for his joint pain (Exhibit
B16F). The undersigned finds no evidence that the claimant’s shoulder pain causes him work
related limitations at this time.” [Id.].
The ALJ’s decision not to consider these impairments severe was supported by substantial
evidence. The ALJ determined the Plaintiff not to be fully credible in his testimony. In his decision
he stated, “The undersigned finds the claimant not to be fully credible. He testified that he quit
smoking eight months prior to the hearing; however, he told his physician on September 7, 2012
(only two months prior to the hearing), that he is trying to cut back on smoking (Exhibit B16F). He
testified that his COPD is debilitating and prevents him from walking 20 feet; however, he continued
to smoke. He testified that his depression and anxiety are disabling; however, he has never received
any formal psychological treatment.” [Tr. 25].
All of this conflicting testimony was sufficient for the ALJ to make a finding that the
Plaintiff was not fully credible. As previously stated, the ALJ is not required to accept a claimant’s
testimony regarding limitations and pain when such testimony is not supported by the record.
Gooch 833 F.2d 589 at 592. Here the Plaintiff’s testimony regarding limitations and pain was not
supported by the record. Accordingly, the ALJ’s decision was based on substantial evidence and
therefore the Plaintiff’s claim is without merit.
2. The ALJ erred by relying on an evaluation by a doctor who did not perform any
testing on the claimant.
The Plaintiff argues that ALJ relied too heavily on an evaluation by Dr. Megan Green and
failed to give proper weight to the opinion of Dr. Leigh Ann Ford. Again, the record indicates the
ALJ gave proper weight to Dr. Green’s evaluation and was supported by substantial evidence.
An explanation of the “treating physician rule” is key to understanding this claim made by
the Plaintiff. Under the treating physician rule, an ALJ will give a treating source’s opinion greater
weight “if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in the case record.” 20 C.F.R. §
404.1527(c)(2); 20 C.F.R. § 416.927. Even so, “[i]t is an error to give an opinion controlling weight
simply because it is the opinion of a treating source if it is not well supported by medically
acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other
substantial evidence in the case record.” SSR 96-2p, “Policy Interpretation Ruling Titles II and XVI:
Giving Controlling Weight to Treating Source Medical Opinions,”1996 WL 374188 at *2, 1996 SSR
LEXIS 9 at *5 (SSR 1996). The Sixth Circuit "has consistently stated that the Secretary is not
bound by the treating physician's opinions, and that such opinions receive great weight only if they
are supported by sufficient clinical findings and are consistent with the evidence." Bogle v.
Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993). In cases such as this where the ALJ declines to give
a treating source’s opinion controlling weight, he must balance the following factors to determine
what weight to give it: “the length of the treatment relationship and the frequency of examination,
the nature and extent of the treatment relationship, supportability of the opinion, consistency of the
opinion with the record as a whole, and specialization of the treating source.” Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. § 404.1527(d) [now 20C.F.R. §
1527(c)(2)(i)-(ii), (3)-(6)] see also 20 C.F.R. § 927(c)(2)(i)-(ii), (3)-(6)).
In addition, the ALJ has a duty to provide good reasons in the decision for the weight given
to a treating source’s opinion. 20 C.F.R. § 404.1527(c)(2). “Those good reasons must be ‘supported
by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.’” Cole, 661 F.3d at 938 (quoting SSR 96-2p, 1996 SSR LEXIS 9 at *11-12, 1996
WL 374188 at *5). In fact, a court “will reverse and remand a denial of benefits, even though
substantial evidence otherwise supports the decision of the Commissioner, when the ALJ fails to
give good reasons for discounting the opinion of the claimant's treating physician." Friend v.
Comm'r of Soc. Sec., 374 F. App'x 543, 551 (6th Cir. 2010) (quoting Wilson, 378 F.3d at543-46
(internal quotation marks omitted)). The purposes of this requirement are: (1) to provide a claimant
with an explanation for why she is deemed not disabled, when her physicians may have told her
otherwise; (2) to ensure that the ALJ applies the treating physician rule; and (3) to permit
meaningful appellate review of the ALJ's application of the rule. Jachim v. Comm'r of Soc. Sec.,
Case No. 1:12-CV-322, 2014 U.S. Dist. LEXIS 4464, at *3-4 (W.D. Mich. Jan. 14, 2014).
Significantly, however, an ALJ is not required to explicitly discuss each factor involved in
deciding whether to give the treating physician’s opinion controlling weight. Id. (citing Francis v.
Comm'r of Soc. Sec., 414 Fed. App'x 802, 804 (6th Cir. 2011) ("Although the regulations instruct
an ALJ to consider these factors, they expressly require only that the ALJ's decision include 'good
reasons ... for the weight ... give[n] [to the] treating source's opinion'—not an exhaustive
factor-by-factor analysis"); Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) ([Plaintiff] cites
no law, and we have found none, requiring an ALJ's decision to apply expressly each of the six
relevant factors in deciding what weight to give a medical opinion.")). There are circumstances
when an ALJ's failure to articulate good reasons for the weight accorded to medical opinions may
constitute harmless error: (1) if a treating source opinion is so patently deficient that the ALJ could
not possibly credit it; (2) if the ALJ adopts the opinion or makes findings consistent with the
opinion; and/or (3) if the ALJ has complied with the goal of 20 C.F.R. §1527(d) [now § 1527(c)(2)],
by analyzing the physician's contradictory opinions or by analyzing other opinions of record.
Friend, 374 Fed. App’s. at 551; See, e.g., Nelson v. Commissioner, 195 Fed. App’s. 462, 470-72
(6th Cir. 2006); Hall v. Commissioner, 148 Fed. App’s. 456, 464 (6th Cir. 2006).
In this case, consultative psychologist Megan Green, Psy.D, examined Plaintiff on February
1, 2011. [Tr. 377-80]. Plaintiff told Dr. Green that he experienced feelings of sadness for part of the
day approximately three days per week, sleep disturbance, mild and intermittent irritability, and
racing thoughts. [Tr. 379]. He reported that he experienced some worry, but not as much since his
doctor adjusted his medicine. [Tr. 379]. He also reported that he was able to dismiss worries
effectively most of the time. [Tr. 379]. Dr. Green summarized that Plaintiff “reported moderate
symptoms of anxiety and depression. He reported no history of occupational impairment associated
with mental health concerns. He would likely be capable of understanding, remembering, and
carrying out instructions. He would likely be capable of sustaining adequate concentration and of
responding appropriately to supervision. He would likely be capable of sustaining persistence and
pace of adapting to change from a mental health perspective.” [Tr. 380].
In assessing Plaintiff’s RFC, the ALJ gave greater weight to Dr. Green’s findings because
they were consistent with the record as a whole [Tr. 22], which, as discussed above, contained few
clinical findings, little evidence of limiting effects, and no indication of anything but conservative
treatment. Plaintiff argues that Dr. Green’s findings were inconsistent because she found the
Plaintiff “to have a [Global Assessment of Functioning] GAF score of 65, but assessed he had
moderate symptoms of anxiety and depression, which is inconsistent with the GAF score assessed.”
[R. 13 at 11]. Plaintiff’s assertion about an inconsistent GAF score is incorrect. A GAF score
merely reflects an examiner’s subjective opinion regarding a person’s symptoms or possible
difficulty in social, occupational, or school functioning at the time of the examination. Oliver v.
Comm’r of Soc. Sec., 415 F.Appx. 681, 684 (6th Cir. 2011). Thus, a GAF score may be simply an
examiner’s impression of the person’s alleged symptoms, with no bearing on the person’s
functioning. Kornecky v. Comm’r of Soc. Sec., 167 F.Appx. 496, 511 (6th Cir. 2006). Furthermore,
the Commissioner has stated the GAF scale “[has] no direct correlation to the severity requirements
of the mental disorders listing.” DeBoard v. Comm’r of Soc. Sec., 211 F.Appx. 411, 415 (6th Cir.
2006). Thus, Dr. Green’s finding of a GAF score of 65 is acceptable.
Based on this analysis, the Plaintiff’s assertion that the ALJ gave too much weight to the
findings of Dr. Green is incorrect. Dr. Green’s findings were supported by evidence found in the
record and the fact that she gave the Plaintiff a GAF score of 65 when she found that he had
moderate symptoms of anxiety and depression is not a definitive reason to discredit her.
Plaintiff also argues that the ALJ did not give enough weight to the opinion of Leigh Ann
Ford, Ph.D. In his decision, the ALJ stated that he gave little weight to Dr. Ford’s assessment
because it is inconsistent with her own treatment notes and with the examination by Dr. Green. Dr.
Ford’s assessment stated very low intelligence but noted Plaintiff’s high level of adaptive
functioning. [Tr. 387]. Dr. Ford also relied on panic attacks in making her assessment of the
Plaintiff’s mental capacity, of which there is very little evidence in the record to support. [Tr. 388].
Based on these findings the ALJ’s decision to give little weight to the opinion of Dr. Ford was
validated by substantial evidence.
3. The ALJ erred by relying on two non-examiners
The Plaintiff’s final claim is that the ALJ erred by relying on two non-examiners whose
reports were not based on the complete record, and who did not have the opportunity to review the
Residual Functional Capacity assessment completed by Dr. Brandi Collins, Plaintiff’s treating
physician. Plaintiff specifically argues that the ALJ gave too much weight to Exhibits B3A and
B9A. Exhibit B3A is a Disability Determination Explanation completed by Dr. P. Saranga on
January 31, 2011, and Exhibit 9A is a Disability Determination Explanation completed by Dr.
Diosdado Irlandez on April 6, 2011. [Tr. 80, 111]. In each of these reports the Doctor made a
finding that the Plaintiff was not disabled. [Tr. 82, 111].
In his determination the ALJ found that these Doctors “opined that the claimant can perform
medium work; never climb ladders, ropes, or scaffolds; must avoid all exposure to extreme heat,
cold, wetness, humidity, and hazards; must avoid concentrated exposures to fumes, odors, dusts,
gases, and pulmonary irritants (Exhibits B3A, B9A).” [Tr. 21]. The ALJ gave great weight to this
assessment because it is consistent with the overall evidence on the record. Again, the ALJ’s
determination to give these assessments great weight and little to the treating physician, Dr. Brandi
Collins, is supported by substantial evidence. The ALJ noted that Dr. Collins’ opinion is not
supported by the findings in the treatment notes. “Dr. Collins residual functional capacity
assessment is based upon the claimant having nine asthma attacks weekly; however, the treatment
notes do not reflect the claimant having frequent asthma attacks. Dr. Collins assessment is based
upon the claimant’s subjective complaints. If the functional capacity were accurate, the claimant
would be bed-ridden twenty hours a day. This is not even supported by his own testimony.” [Tr.
21]. Furthermore, the ALJ gave little weight to Dr. Collins’ mental assessment because the
claimant’s psychological residual functional capacity is beyond her expertise as a family
practitioner. [Tr. 21]. As previously stated, the ALJ determined the Plaintiff not to be fully credible
in his testimony. In his decision he stated, “The undersigned finds the claimant not to be fully
credible. He testified that he quit smoking eight months prior to the hearing; however, he told his
physician on September 7, 2012 (only two months prior to the hearing), that he is trying to cut back
on smoking (Exhibit B16F). He testified that his COPD is debilitating and prevents him from
walking 20 feet; however, he continued to smoke. He testified that his depression are disabling;
however, he has never received any formal psychological treatment.” [Tr. 25]. Based on all of this,
the ALJ’s decision to give great weight to the non-examining physicians findings was supported by
substantial evidence and therefore the Plaintiff’s claim is without merit.
For the foregoing reasons, it is ORDERED that the Plaintiff’s Motion for Summary
Judgment [Record No. 13] be DENIED, the Defendant Commissioner’s Motion for Summary
Judgment [Record No. 14] be GRANTED, and that Judgment be entered affirming the final decision
of the Commissioner.
Signed July 2, 2014.
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