Parmley v. SSA
Filing
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MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is hereby AFFIRMED; (2) Plf's Motion for Summary Judgment 10 is hereby DENIED; (3) Dft's Motion for Summary Judgment 11 is hereby GRANTED; (4) A Judgment shall be entered contemporaneously herewith. Signed by Judge David L. Bunning on 6/9/15.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
CIVIL ACTION NO. 14-121-DLB
WANDA PARMLEY
vs.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
DEFENDANT
*** *** *** ***
Plaintiff Wanda Parmley 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. The
Court, having reviewed the record, will affirm the Commissioner’s decision, as it is
supported by substantial evidence.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed her application for Supplemental Security Income (SSI) on March 19,
2010, alleging a disability onset date of November 4, 2008. (Tr. 101-02). She claimed she
was no longer able to work due to both physical and mental impairments. (Tr. 109).
Plaintiff’s claim was denied initially (Tr. 32), and again on reconsideration (Tr. 33). ALJ
Michele M. Kelley held a hearing on July 23, 2013, and thereafter denied Plaintiff’s claim.
(Tr. 11-23). The ALJ’s decision became the final decision of the Commissioner when the
Appeals Council denied Plaintiff’s request for review on July 23, 2014. (Tr. 6-9). This
appeal followed.
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II.
DISCUSSION
A.
Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Cutlip v. Sec’y of Health & Human Servs., 25 F.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. Courts are not to conduct a de novo review, resolve
conflicts in the evidence, or make credibility determinations. See id. Rather, we are to
affirm the Commissioner’s decision, provided it is supported by substantial evidence, even
if we might have decided the case differently. See Her v. Comm’r of Soc. Sec., 203 F.3d
388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant is still performing substantial gainful activity; Step 2, whether any of
the claimant’s impairments are “severe”; Step 3, whether the impairments meet or equal
a listing in the Listing of Impairments; Step 4, whether the claimant can still perform his past
relevant work; and Step 5, whether significant numbers of other jobs exist in the national
economy which the claimant can perform. As to the last step, the burden of proof shifts
from the claimant to the Commissioner. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
474 (6th Cir. 2003); Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994).
B.
The ALJ’s Determination
At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity
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since March 19, 2010, the application date. (Tr. 16). At Step 2, the ALJ found that Plaintiff
had the following severe impairment: lumbar strain/sprain and annular tear at L4/5 with disc
bulging back pain. Id. After considering the four broad functional areas in Section 12.00C
of the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1), the ALJ
determined that Plaintiff had nonsevere mental impairments. Id. At Step 3, the ALJ found
that Plaintiff did not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 18).
At Step 4, the ALJ concluded that Plaintiff had the residual functional capacity (RFC)
to perform “less than a full range of medium work” with the following limitations:
[Plaintiff] can lift, carry, push, and pull 25 pounds frequently and 50 pounds
occasionally. She can stand and walk six hours in an eight-hour workday
and sit six hours in an eight-hour workday. She can occasionally climb
ramps or stairs and stoop. She should avoid concentrated exposure to
extreme cold, humidity, vibrations, and hazards such as vibrating machines.
Id.
After determining that Plaintiff has no past relevant work, the ALJ proceeded to the
final step of the sequential analysis. At Step 5, the ALJ found that Plaintiff was capable of
performing a significant number of jobs in the national and regional economy. (Tr. 22).
The ALJ based this conclusion on testimony from a vocational expert (VE), in response to
a hypothetical question assuming an individual of Plaintiff’s age, education, work
experience, and RFC. Id. The ALJ then asked the VE additional hypothetical questions
based on limitations not contained in the ALJ’s RFC assessment, but otherwise supported
by evidence in the record. (Tr. 22-23). The VE testified that even with these additional
limitations, Plaintiff could still perform a significant number of jobs in the national and
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regional economies. Id. Based on the VE’s testimony, and considering the Plaintiff’s age,
education, work experience, and RFC, the ALJ found that Plaintiff was “not disabled” as
defined by the Social Security Act. (Id.).
C.
Analysis
Plaintiff raises three arguments on appeal: (1) the ALJ failed to give good reasons
for discounting her treating physician’s opinion; (2) the ALJ failed to include her mental
impairments in her RFC, and as a result, the ALJ’s hypothetical to the VE did not accurately
describe her limitations; and (3) the ALJ erred in determining that her mental impairment
was not severe.
1.
The ALJ’s gave “good reasons” for rejecting the opinion of
Plaintiff’s treating physician
A treating physician’s opinion as to the nature and severity of a claimant’s condition
is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in
the case record.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). Even
if the opinion is not entitled to “controlling weight,” there remains a presumption, albeit a
rebuttable one, “that the opinion of a treating physician is entitled to great deference.” Id.
In determining how much deference to give to the treating physician’s opinion, the ALJ
must consider a number of factors, including “the length, frequency, nature, and extent of
the treatment relationship; the supportability and consistency of the physician’s
conclusions; the specialization of the physician; and any other relevant factors.” Id.
The ALJ must also “provide ‘good reasons’ for discounting treating physicians’
opinions, reasons that are sufficiently specific to make clear to any subsequent reviewers
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the weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.” Id. This rule ensures that claimants understand the disposition of their
case, particularly when their own physician deems them disabled, and also permits
meaningful appellate review of the ALJ’s decision. Id. Thus, even if the ALJ’s decision to
disregard the treating physician’s opinion is supported by the record, the decision may still
be reversed if adequate explanation is missing. Id.
Plaintiff contends that the ALJ failed to give adequate reasons for discounting the
opinion of her treating physician, Dr. Amy Conley. Dr. Conley opined that Plaintiff had the
following limitations: stand and walk less than two hours in an eight hour day; occasionally
lift five pounds and frequently lift none; occasionally bend and stoop; never balance; never
climb ladders and stairs; work less than two hours per day; and absent from work more
than four days per month. (Tr. 367). In assessing Plaintiff’s RFC, the ALJ ultimately
accepted agency consultant Dr. Subhideb Mukherjee’s opinion over Dr. Conley’s. (Tr. 21).
Contrary to Plaintiff’s argument, the ALJ provided “good reasons” for rejecting Dr.
Conley’s opinion.
The ALJ explained that she gave Dr. Conley’s opinion “no weight”
because “the evidence of record, including her own treatment records, do not support such
severe limitations.” (Tr. 21). More specifically, the ALJ noted that the “diagnostic and
clinical evidence demonstrated no significant findings,” and that Plaintiff’s “activities of daily
living, including cooking, cleaning, and caring for a disabled son and husband, are not
consistent with an individual as limited in Dr. Conley’s opinion.” Id. These “good reasons”
are supported by substantial evidence in the record.
First, as the ALJ noted, Dr. Conley’s opinion is inconsistent with her own treatment
records. Although Plaintiff at times reported more severe back pain (Tr. 267), Dr. Conley
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assessed Plaintiff’s back pain as “moderate” in March 2011, December 2012, and February
2013. (Tr. 273, 340, 245). In several reports, Dr. Conley indicated that Plaintiff had normal
reflexes (Tr. 273, 348, 352).
Furthermore, Dr. Conley routinely classified Plaintiff’s
presentation as normal, or no distress. (Tr. 266, 345, 352, 361). Finally, in December
2012, Dr. Conley reported that Plaintiff was “feeling better” after a series of steroid
injections. (Tr. 259, 344). See Helm v. Comm'r of Soc. Sec. Admin., 405 F. App'x 997,
1000 (6th Cir. 2011) (“Here, the ALJ properly declined to accord [the treating physician’s]
opinion ’controlling weight’ because there was substantial contrary evidence in the
record.”).
Second, the ALJ correctly pointed out that Dr. Conley’s assessment is at odds with
Plaintiff’s activities of daily living. Specifically, Plaintiff’s function reports suggests that she
cooks meals on a daily basis, makes her bed, does laundry multiple times a week, and
grocery shops. (Tr. 119-121, 166-67). Although Plaintiff reported increased hip pain in
December 2012, her pain resulted from jumping off a tractor, an activity inconsistent with
Dr. Conley’s assessment. (Tr. 344). See Helm, 405 F. App’x at 1002 (“[T]he ALJ
discounted Dr. Cheng's assessment in part because Helm ‘continues to perform significant
activities around the house . . . .’”).
Third, Dr. Conley’s opinion is inconsistent with other opinion evidence. In December
2011, state agency consultant Dr. Subhideb Mukherjee opined that Plaintiff could lift 50
pounds occasionally and 25 pounds frequently; could stand and/or walk six hours out of an
eight-hour day; could sit six hours out of an eight-hour day; and could occasionally stoop,
as well as climb ladders, ropes, and scaffolds.
(Tr. 323-30).
Further, consultative
examining physician Dr. Naushad Haziq opined that Plaintiff had pain in her lumbar back,
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but only “mild limitation of movement of the lumbar spine,” and no tenderness or loss of
range of motion in the hips. (Tr. 319).
Finally, the Court agrees with the ALJ that there is no way to determine whether Dr.
Conley’s opinion is supported by objective evidence. (Tr. 21). Dr. Conley provided her
RFC assessment by circling limitations on a standardized form. (Tr. 367). Beyond that,
she gave no explanation for her diagnosis. As a result, the Court cannot determine
whether her assessment was based on acceptable clinical and laboratory diagnostic
techniques. See Price v. Comm'r Soc. Sec. Admin., 342 F. App'x 172, 176 (6th Cir. 2009).
On the other hand, Dr. Mukherjee’s opinion is supported by objective evidence.
Diagnostic testing revealed only minimal disc bulging with a mild degree of central canal
stenosis at the L4-L5 level (Tr. 183), as well as no loss in motor strength or sensory deficit
(Tr. 189, 273, 345). Moreover, Plaintiff reported 100 percent improvement in her back after
completing therapy and stated that she was able to prepare meals, vacuum, do laundry,
and get down on her hands and knees to mop. (Tr. 130, 139, 161, 202, 249). Based on
the foregoing, the Court finds that Dr. Conley’s opinion was not entitled to controlling
weight, and further finds that the ALJ gave good reasons for accepting Dr. Mukherjee’s
opinion over that of Dr. Conley. See Durrette v. Comm'r of Soc. Sec., No. 94-3734, 1995
WL 478723, at *3-4 (6th Cir. 1995) (concluding that it was proper for the ALJ to give greater
weight to the reviewing doctors’ opinions because the treating physician’s opinion was
conclusory, not supported by objective evidence, and controverted by other medical opinion
testimony).
2.
The ALJ committed harmless error in determining Plaintiff’s RFC
Plaintiff contends that the ALJ’s RFC finding and hypothetical question to the VE
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failed to account for her metal impairments. Plaintiff is correct that the ALJ erred in
assessing her RFC at Step 4. However, at Step 5 the ALJ posed a hypothetical to the VE
that adequately described all of Plaintiff’s limitations. Therefore, any error by the ALJ at
Step 4 was harmless.
A claimant’s RFC is the most she can do despite her impairments. 20 C.F.R. §§
416.945(a)(1) & (5). The ALJ must assess a claimant’s RFC based on all relevant
evidence. 20 C.F.R. § 416.945(a)(3). When a plaintiff has a severe impairment (such as
here), the ALJ must consider the limiting effects of all impairments, even those that are not
severe. White v. Comm’r of Soc. Sec., 312 F. App'x 779, 787 (6th Cir. 2009); 20 C.F.R. §§
404.1545(a)(2); 416.945(a)(2). If an ALJ decides to discount a nonsevere limitation when
determining a Plaintiff’s RFC, she must state the evidence used to support that finding. Id.
at 788. The mere diagnosis of a condition does not necessarily establish a work-related
limitation. Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002).
Plaintiff argues that the ALJ erred in determining her RFC. She points to the
following in support: (1) her own statements that she took medication for her nerves and
has difficulty completing tasks (Tr. 109, 112, 169); (2) her sister’s statements that she was
depressed and nervous (Tr. 118-126); (3) an assessment from Nurse Sally Ferguson that
indicated she had posttraumatic stress disorder, depressive disorder, and a global
assessment of functioning score of 55 (Tr. 363); and (4) Dr. Haziq’s opinion that she
suffered from anxiety and depression (Tr. 320). Plaintiff suggests that these opinions
demonstrate that she has a severe mental impairment and that this finding should have
been included in her RFC and the ALJ’s hypothetical question to the VE.
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The ALJ instead relied on reports from state agency consultants and psychologists
Drs. Ann Demaree and Ed Ross. Both doctors opined that Plaintiff does not have a severe
mental impairment. (Tr. 283, 301). For the following reasons, the ALJ was permitted to
accept this opinion over the evidence Plaintiff relies upon. See Blakely v. Comm’r of Soc.
Sec., 581 F.3d 399, 409 (6th Cir. 2009).
First, Plaintiff admitted to lying to a clinician about her treatment progress. (Tr. 38990). This alone justifies the ALJ’s conclusion that Plaintiff’s statements about her limitations
were not credible. (Tr. 20). Second, because Nurse Ferguson is a non-medical source,
the ALJ had discretion to determine how much weight to giver her opinion, particularly here
where there is “no clinical or treatment records supportive of [her] conclusion.” (Tr. 21);
Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 540-41 (6th Cir. 2007). The same can be
said of the ALJ’s treatment of Plaintiff’s sister’s statement. Finally, although Dr. Haziq
opined that Plaintiff suffered from depression, he is not a treating source, and nowhere
does he suggest that Plaintiff’s mental health limited her ability to work. Thus, substantial
evidence supports the ALJ’s decision to adopt Drs. Demaree’s and Ross’ opinion that
Plaintiff does not have a severe mental impairment. The ALJ erred, however, by failing to
address the totality of their opinions.
Although Drs. Demaree and Ross ultimately found that Plaintiff’s mental impairment
was not severe, they did opine that Plaintiff suffered from anxiety. (Tr. 283, 287, 301).
Both doctors concluded that as a result of Plaintiff’s anxiety she had mild limitations in
restrictions of daily living, mild difficulties in maintaining social functioning, and mild
difficulties in maintaining concentration, persistence, or pace. (Tr. 292, 311). The ALJ
discussed these limitations at Step 2. Yet, at Step 4 she failed to analyze whether those
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limitations impacted Plaintiff’s ability to work. This was error. See White, 312 F. App’x at
788 (holding that it was error for an ALJ to give “no explanation for totally discounting the
objective evidence of [a claimant’s] mental impairment in determining [the claimant’s] RFC);
Katona v. Comm'r of Soc. Sec., No. 14-CV-10417, 2015 WL 871617, at *6 (E.D. Mich. Feb.
27, 2015) (concluding that an ALJ erred at Step 4 by not discussing what impact a
claimant’s mild mental limitations had on her RFC); Hicks v. Comm'r of Soc. Sec., No.
12-13581, 2013 WL 3778947, at *3 (E.D. Mich. July 18, 2013). Again, once the ALJ found
that Plaintiff had severe lower back impairments, she was required to consider the
combined effect of all impairments, including nonsevere mental limitations. White, 312 F.
App'x at 787 (citing 20 C.F.R. §§ 404.1523, 404.1545(a)(2)). Because the ALJ did not
discuss Plaintiff’s mild mental limitations at Step 4, the Court cannot determine whether
Plaintiff’s RFC incorporates those limitations. And even if there is substantial evidence that
Plaintiff’s mild mental impairment does not limit her ability to work, the ALJ is still “required
to state the basis for such conclusion,” which the ALJ failed to do. Hicks, 2013 WL
3778947, at *3.
The Court will nevertheless affirm the Commissioner’s decision, as the ALJ’s error
at Step 4 was ultimately harmless.
At Plaintiff’s hearing, the ALJ posed an initial
hypothetical to the VE based on Plaintiff’s faulty RFC. Yet, the ALJ asked a second
hypothetical that properly included Plaintiff’s mental limitations. Specifically, the ALJ asked:
Assume a hypothetical individual with [Plaintiff’s age, education, work
experience, RFC, and some additional physical limitations], but . . . in
addition this hypothetical individual can have only occasional interaction
with the public, coworkers, and supervisors, and can make only simple
work-related decisions, and tolerate few, defined as occasional,
changes in a routine work setting. Can this hypothetical individual perform
any jobs?
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(Tr. 396) (emphasis added). These additional restrictions adequately account for Drs.
Demaree’s and Ross’ opinion that Plaintiff has “mild” limitations in restrictions of daily living,
maintaining social functioning, and maintaining concentration, persistence, or pace. In
response to this hypothetical, the VE testified that Plaintiff could work as a machine tender
(100,000 nationally/ 2,500 regionally), and a routing clerk (68,000 jobs nationally/ 3,000
regionally). (Tr. 397-98). Therefore, the ALJ concluded that “even if the claimant were so
additionally limited, she could still perform a significant number of jobs in the national
economy.” (Tr. 23).
If the Commissioner establishes that a claimant can perform work existing in
significant numbers in the national economy, a court must affirm the Commissioner’s
decision to deny benefits. Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999). In
determining whether a claimant has the capacity to perform substantial gainful activity, the
Commissioner may rely on a VE’s testimony, so long as the question posed to the VE
“portray[s] a claimant's physical and mental impairments,” or in other words, “what the
claimant can and cannot do.” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir.
2010) (quoting Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 633 (6th Cir.2004)); Wilson
v. Comm'r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004).
The additional hypothetical included all of Plaintiff’s limitations–both physical and
mental. Because the VE testified that despite these limitations Plaintiff can still perform
jobs that exist in significant numbers in the national economy, the ALJ’s decision to deny
benefits is supported by substantial evidence. Remand would correct the RFC, but result
in the same hypothetical question, and thus yield the same outcome. The Court therefore
concludes that the ALJ’s error at Step 4 was harmless. See Rabbers v. Comm'r Soc. Sec.
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Admin., 582 F.3d 647, 654 (6th Cir. 2009) (explaining that in social security disability cases
courts “will not remand for further administrative proceedings unless the claimant has been
prejudiced on the merits or deprived of substantial rights because of the agency's
procedural lapses”) (quotations and citations omitted); Heston v. Comm'r of Soc. Sec., 245
F.3d 528, 531 (6th Cir. 2001) (concluding that an ALJ committed harmless error in failing
to discuss a doctor’s summary because “[t]he ALJ . . . considered [claimant’s] limitations
. . . in the hypothetical posed to the vocational expert . . . [and the] vocational expert
concluded that there were jobs in the area . . . .”); Dodson v. Comm'r of Soc. Sec., No.
1:12-CV-109, 2013 WL 4014715, at *4 (E.D. Tenn. Aug. 6, 2013) (finding harmless error
where an ALJ failed to include a mental assessment in a claimant’s RFC).
3.
It is legally irrelevant whether the ALJ erred in finding that
Plaintiff’s mental impairments are nonsevere
In a somewhat related argument, Plaintiff contends that the ALJ erred at Step 2 by
finding that her mental impairments are nonsevere.
Even if Plaintiff is correct, her
argument is of no consequence. When an ALJ finds that a claimant has a severe
impairment, and as a result considers the claimant’s severe and nonsevere impairments
in the later steps of the sequential analysis, it is “legally irrelevant” whether the ALJ
classified some of the plaintiff’s impairments as nonsevere. Anthony v. Astrue, 266 F.
App'x 451, 457 (6th Cir. 2008); Fisk v. Astrue, 253 F. App'x 580, 583-84 (6th Cir. 2007);
Maziarz v. Sec'y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987). Here, the
ALJ found that Plaintiff has severe lumbar strain/sprain and annular tear at L4/5 with disc
bulging. (Tr. 16). Because Plaintiff cleared Step 2, the ALJ moved on to the remaining
steps in the analysis. (Tr. 18-23). At Step 5, the ALJ then considered all of Plaintiff’s
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impairments, severe and nonsevere, by proposing the second hypothetical to the VE.
Accordingly, Plaintiff’s argument that her mental impairment is severe is a moot point.
III.
CONCLUSION
For the reasons stated herein, the court concludes that the ALJ’s findings were
adequately explained and supported by substantial evidence. Accordingly,
(1)
The decision of the Commissioner is hereby AFFIRMED;
(2)
Plaintiff’s Motion for Summary Judgment (Doc. # 10) is hereby DENIED;
(3)
Defendant’s Motion for Summary Judgment (Doc. # 11) is hereby GRANTED;
(4)
A Judgment shall be entered contemporaneously herewith.
This 9th day of June, 2015.
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