Thomas v. SSA

Filing 15

MEMORANDUM OPINION & ORDER, 1) denying 13 MOTION for Summary Judgment by Rebecca L. Thomas 2) granting 14 MOTION for Summary Judgment by Commissioner of SSA. Signed by Judge Joseph M. Hood on 3/20/15.(SMT)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
REBECCA L. THOMAS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil Case No.
0:14-CV-129-JMH
MEMORANDUM OPINION
AND ORDER

***
This
Summary

matter

Judgment

Commissioner’s

is

before

[DE

13,

denial

the
14]

of

Court
on

her

upon

cross-motions

Plaintiff’s
application

appeal
for

of

for
the

disability

insurance benefits. [Tr. 8-21].1 The Court, having reviewed the
record

and

being

otherwise

sufficiently

advised,

will

deny

Plaintiff’s motion and grant Defendant’s motion.
I. Overview of the Process and the Instant Matter
The

Administrative

Law

Judge

("ALJ"),

in

determining

disability, conducts a five-step analysis:
1.
An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant’s medical condition.
2.
An individual who is working but does not have a
"severe" impairment which significantly limits his
physical or mental ability to do basic work activities
is not disabled.
1

These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative
record before the Court.

3.
If an individual is not working and has a severe
impairment which "meets the duration requirement and
is listed in appendix 1 or is equal to a listed
impairment(s)", then he is disabled regardless of
other factors.
4.
If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the Secretary
reviews the claimant’s residual functional capacity
and the physical and mental demands of the claimant’s
previous work. If the claimant is able to continue to
do this previous work, then he is not disabled.
5.
If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary considers his residual functional capacity,
age, education, and past work experience to see if he
can do other work. If he cannot, the claimant is
disabled.

Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110
(6th

Cir.

1994)

(citing

20

C.F.R.

§

404.1520

(1982)).

“The

burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled.” Id. “If the
analysis
claimant

reaches
is

the

not

fifth

disabled,

step

without

the

burden

a

finding

that

the

transfers

to

the

Secretary.” Id.
In the instant matter, the ALJ determined that Plaintiff
did

not

engage

in

substantial

gainful

activity

during

the

relevant time period under step one. [Tr. 13]. Under step two,
the ALJ found that Plaintiff’s degenerative disc/joint disease,

2

fibromyalgia,

and

obesity

were

“severe”

as

defined

by

the

agency’s regulations. [Tr. 13]; 20 CFR § 416.920(c).
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1. [Tr.
17]. After further review of the record, the ALJ concluded at
step

four

that

Plaintiff

had

a

residual

functional

capacity

(“RFC”) to perform light work, involving lifting/carrying of no
more than 20 pounds maximum occasionally and 10 pounds maximum
frequently. Plaintiff further limited in that she should engage
in only frequent (versus constant/continuous) stooping and avoid
concentrated exposure to vibrations. [Tr. 18].
The ALJ found that Plaintiff was able to perform her past
relevant work as a charge nurse and fast food assistant. [Tr.
21]. Thus, the ALJ determined that Plaintiff is not disabled
under the Social Security Act. [Tr. 21].
II. Standard of Review
In

reviewing

the

ALJ’s

decision

to

deny

disability

benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted). Instead, judicial review of the
ALJ’s decision is limited to an inquiry into whether the ALJ’s
findings were supported by substantial evidence, 42 U.S.C. §
3

405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec’y
of Health & Hum. Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"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." Cutlip, 25 F.3d at 286 (citations omitted).
III. Background
Plaintiff filed a Title II application for disability and
disability

insurance

benefits,

beginning on April 13, 2011.
the

alleged

disability

alleging

total

disability

Plaintiff was 43 years of age at

date,

[Tr.

11,

34],

and

has

an

Associate’s Degree in Nursing. [Tr. 35]. Plaintiff has past work
experience as a fast food worker, a registered nurse, and a
store clerk. [Tr. 162]. Plaintiff claims she has become disabled
and unable to work due to fibromyalgia, chronic pain, lumbar
disc

disease,

depression,

anxiety,

and

osteoarthritis.

[Tr.

161].
Plaintiff’s

claims

were

denied

initially

and

upon

reconsideration. [Tr. 11]. Plaintiff requested a hearing with
the ALJ, which took place on April 29, 2013. [Tr. 30-52]. At the
hearing,

the

ALJ

heard

testimony

from

Plaintiff

and

the

vocational expert (“VE”), Tina Baldwin. The VE testified that a
4

person with an RFC equivalent to the ALJ’s finding for Plaintiff
could perform Plaintiff’s past work as a charge nurse and fast
food assistant manager. [Tr. 50].
After considering all the evidence in the administrative
record, including the testimony of the plaintiff and the VE, the
ALJ issued an unfavorable decision denying disability insurance
benefits on May 31, 2013. [Tr. 8]. The Appeals Council denied
Plaintiff’s

request

for

review

on

July

8,

2014.

[Tr.

1].

Plaintiff has exhausted her administrative remedies, and this
case is ripe for review under 42 U.S.C. §§405(g) & 1383(c)(3).
IV. Analysis
Plaintiff

argues

that

the

ALJ

erred

in

(1)

failing

to

properly consider Plaintiff’s mental impairments, (2) failing to
give adequate reasons for discounting the treating physician’s
opinion,

and

(3)

improperly

weighing

the

opinions

of

state

agency non-examining physicians.
1. The ALJ did not commit reversible error
consideration of Plaintiff’s mental limitations.
Plaintiff

asserts

that

the

ALJ

should

in

have

its

found

Plaintiff’s anxiety and depression to be “severe” under step
two.

The

Commissioner

points

out

that

whether

anxiety

and

depression were listed as “severe” is largely irrelevant because
the ALJ found other severe impairments and continued on in the
analysis. See Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir.

5

2008) (citing Maziarz v. Sec’y of Health & Human Servs., 837
F.2d 240, 244 (6th Cir. 1987)). Accordingly, the Court finds
that the ALJ’s failure to include anxiety and depression as
severe impairments in step two is not reversible error.
However,

Plaintiff

also

asserts

that

the

ALJ

failed

to

consider all of Plaintiff’s severe and non-severe impairments in
the residual functional capacity determination and, therefore,
the

ALJ

failed

to

accurately

describe

the

claimant

in

the

hypothetical to the VE.
Although an ALJ need not discuss every piece of evidence in
the administrative record, see Kornecky v. Comm’r of Soc. Sec.,
167 F. App’x 496, 508 (6th Cir. 2006), it is well settled that
the ALJ must consider all of a claimant’s medically determinable
impairments in the context of a claimant’s residual functional
capacity. See 20 C.F.R. § 404.1545(a)(2); Simpson v. Comm’r of
Soc. Sec., 344 F. App’x 181, 191 (6th Cir. 2009); White v.
Comm’r of Soc. Sec., 312 F. App’x 779, 787-88 (6th Cir. 2009).
This is the case even when impairments have been previously
discussed and determined to be non-severe in step two of the
analysis

because,

for

mental

impairments

in

particular,

the

ALJ’s RFC analysis should assess the claimant’s mental capacity
and determine how it relates to her ability to work. See 20
C.F.R. § 404.1545(c); see also Simpson, 344 F. App’x 181 at 190

6

(discussing how the ALJ should consider the combined effect of
all impairments in determining the RFC).
Here,

the

ALJ

underwent

an

extensive

analysis

of

Plaintiff’s mental impairments in step two. [Tr. 15-17]. The ALJ
assessed

the

various

(and

conflicting)

opinions

concerning

Plaintiff’s depression and addressed Plaintiff’s testimony. [Tr.
15-17].
would

It

also

affect

analyzed

her

ability

how
to

Plaintiff’s
do

work.

mental

[Tr.

16

impairments
at

¶

2-3].

Nevertheless, this is the last mention of mental impairments,
for they are not addressed at all in the residual functional
capacity analysis. If error, see Simpson, 344 F. App’x 181 at
190, it is harmless for two reasons.
First, the ALJ’s decision to discount Plaintiff’s mental
impairments
Circuit

has

is

supported

found

by

reversible

substantial
error

evidence.

where

an

ALJ

The

Sixth

failed

to

address a claimant’s mental impairment in the RFC and when that
decision was not supported by substantial evidence. White, 312
F. App’x at 787-88 (finding ALJ improperly discounted mental
impairments in RFC analysis because it did not accurately state
the evidence used to support its finding); Simpson, 344 F. App’x
at 190-92 (holding ALJ improperly discounted mental impairments
in RFC analysis where there was uncontradicted objective medical
evidence

that

claimant

suffered

from

such

limitations).

Conversely, here, based on a correct characterization of the
7

record, the ALJ determines that Plaintiff’s depression does not
interfere with activities of daily living, does not appear to
prohibit her from maintaining social functioning or maintaining
concentration, persistence, or pace. [Tr. 16]. The state agency
examining physician’s report, the treating physician’s medical
records, as well as the Plaintiff’s subjective testimony support
this conclusion.
The state agency examining physician, Dr. Green, although
diagnosing Plaintiff with depressive disorder and assigning her
a

GAF

of

60

to

indicate

a

moderate

limitation,

wrote

that

Plaintiff “has the resources to adapt and respond appropriately
to pressures normally found in the day-to-day work setting.”
[Tr. 768]. Similarly, Plaintiff’s treating physician sometimes
diagnosed

depression

instances

noted

and

sometimes

Plaintiff’s

“normal

did

not,

mood

and

but

in

affect,

most
her

behavior is normal, thought content normal.” [Tr. 796; 809; 816;
820]. However, on one occasion Dr. Patton noted Plaintiff seemed
“slowed” and “exhibit[ed] a depressed mood.” [Tr. 824 and 94952]. Plaintiff also received a diagnosis of depressive disorder
at Three Rivers Medical Psychiatric Clinic, [Tr. 315], and was
diagnosed

with

anxiety

by

other

physicians

at

Catlettsburg

Family Care Center on two occasions. [Tr. 792; 829]. The ALJ
also considered Plaintiff’s testimony regarding her depression,
but noted other subjective evidence to indicate that she was
8

able to function in a work environment. [Tr. 15-16]. Although
different conclusions could be drawn, this record reflects that
the ALJ’s decision is supported by substantial evidence. See
Lewless v. Sec’y of Health & Human Servs., 25 F.3d 1049 (6th
Cir. 1994) (unpublished opinion).
Second,

the

ALJ’s

decision

discusses

Plaintiff’s

mental

impairments in the context of Plaintiff’s ability to do work.
See 20 C.F.R. § 404.1545(c). One of the issues noted in Simpson
was that this analysis was missing because of the ALJ’s failure
to discuss non-severe impairments in the RFC. See Simpson, 344
F. App'x at 191. Here, however, the ALJ, albeit in step two,
includes this analysis and thoroughly cites to the record in
support.
For the foregoing reasons, “no purpose would be served” and
no different outcome would result by remanding for the ALJ to
revisit

the

RFC

only

to

restate

its

analysis

in

step

two.

Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507 (6th Cir.
2006) (citing Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.
1989)). Similarly, the hypothetical would not be changed with
remand, as it accurately described the Plaintiff’s limitations
to the VE. Accordingly, the Court finds no reversible error.

9

2. The ALJ provided “good reason” for
opinion of treating physician Dr. Patton.

discounting

the

Plaintiff contends that the ALJ failed to give adequate
reasons for discounting treating physician Dr. Patton’s opinion.
An ALJ may decide not to afford the opinion of a treating source
controlling

weight

based

on

certain

factors.

20

C.F.R.

§

404.1527(d)(2). But in so doing, there is a “clear procedural
requirement”:
[A] decision denying benefits ‘must contain specific
reasons for the weight given to the treating source’s
medical opinion, 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.’
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)
(quoting SSR 96-2p, 1996 WL 374188, at *5 (1996)); see also 20
C.F.R. § 404.1527(d)(2).
The parties do not dispute that Dr. Patton was Plaintiff’s
treating

physician.

In

addition

to

Dr.

Patton’s

treatment

record, on May 3, 2012, Dr. Patton provided a medical report
diagnosing
disease,

Plaintiff

fibromyalgia,

with
and

severe

degenerative

depression.

[Tr.

920].

lumbar
Dr.

disc
Patton

opined that Plaintiff could occasionally lift ten pounds and
frequently lift less than ten pounds; stand and walk about three
hours;

sit

about

two

hours

in

an

eight-hour

workday;

never

stoop, crouch, kneel, and crawl; and would frequently experience

10

pain and symptoms that would interfere with her attention and
concentration to work. Dr. Patton also opined that Plaintiff
would need unscheduled breaks every two to three hours and would
be absent more than four days per month due to severe pain and
depression. [Tr. 919-24].
The ALJ affords Dr. Patton’s opinion lesser weight because
it “seems overly reliant upon subjective history and report than
supported by the documented findings of the record.” [Tr. 19].
With regard to Plaintiff’s physical limitations, the ALJ then
explains that while there is evidence of Plaintiff’s loss of
motion and pain in her record, there is no evidence that it is
at the level of pain and limitation that Dr. Patton’s report
describes. [Tr. 19]. Contrary to Plaintiff’s assertion, the ALJ
does

not

contradict

itself

when

it

refers

to

records

of

Plaintiff’s motion loss and treatment for pain, it acknowledges
those records and then disagrees with Dr. Patton’s conclusion as
to the degree of limitation that those records indicate. See
Kidd v. Comm’r of Soc. Sec., 283 F. App’x 336, 340-41 (6th Cir.
2008)

(“[T]he

ultimate

determination

of

disability

is

the

prerogative of the Commissioner, not the treating physician.”)
(alteration and citation omitted).
The Court also notes that the ALJ’s decision discounting
Dr.

Patton’s

adequate.

opinion

While

the

on

ALJ’s

Plaintiff’s
“good
11

mental

reason”

for

limitations
discounting

is
Dr.

Patton’s opinion is found in several different parts of the
opinion, it sufficiently complies with Wilson and SSR 96-2p.
With citations to the record, the ALJ explains its finding that
Plaintiff’s depression would not impact her work because the
record shows that it does not appear to inhibit daily living,
concentration,

and

social

functioning.

[Tr.

15-17,

19].

The

ALJ’s analysis of Dr. Patton’s opinion includes citation to the
record and the appropriate degree of specificity, and the Court
finds that it is supported by substantial evidence. Accordingly,
the Court finds no error.
3. The ALJ did not err when it assigned great weight to
non-examining physicians’ opinions.
Plaintiff

argues

that

the

ALJ

improperly

weighed

the

opinions of state agency non-examining physicians. Specifically,
Plaintiff first contends that the non-examining physicians did
not review the entire record, in particular the treating source
phsycian’s (Dr. Patton) medical report. On multiple occasions,
the Sixth Circuit has held that it is not reversible error for
the ALJ to accord greater weight to the state agency physicians
over

the

claimant’s

treating

source.

See,

e.g.,

Blakley

v.

Comm’r Of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009). And here
the state agency physicians actually reviewed the entirety of
the records from Dr. Patton’s treatment of the Plaintiff—it was
only

Dr.

Patton’s

opinion

report

12

that

was

not

reviewed.

Regardless, it is clear from the ALJ’s opinion that the ALJ
considered the entire record, including Dr. Patton’s opinion,
before reaching a final decision. See McGrew v. Comm’r of Soc.
Sec., 343 F. App’x 26, 32 (6th Cir. 2009).
Plaintiff’s

next

argument

is

that

the

non-examining

physicians describe Plaintiff’s steroid injection treatment as
“conservative”

although

Plaintiff

underwent

multiple

steroid

injections. The Court finds that the physician’s description of
“conservative treatment” is in fact consistent with Plaintiff’s
multiple injections, because “conservative treatment” is used to
refer to non-surgical treatment options, like injections, not to
indicate less or fewer incidents of treatment.
Finally,

Plaintiff

maintains

that

the

record

indicates

Plaintiff has swelling, positive straight leg raise tests, and
gait

problems.

Although

Plaintiff

fails

to

state

an

actual

argument and provides no citation to the record on this point,
the

Court

notes

acknowledged

these

that

the

issues.

non-examining
[Tr.

59;

63;

physicians’
64].

report

Therefore,

the

Court finds that the ALJ properly weighed the opinions of the
state agency non-examining physicians and did not err.
V. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)

that Plaintiff’s Motion for Summary Judgment [DE 13]

be, and the same hereby is, DENIED; and
13

(2)

that Defendant’s Motion for Summary Judgment [DE 14]

be, and the same hereby is, GRANTED.
This the 20th day of March, 2015.

14