Kiser v. SSA
Filing
17
MEMORANDUM OPINION & ORDER, denying 12 MOTION for Summary Judgment by Carla Jo Kiser and granting 16 MOTION for Summary Judgment by Commissioner of SSA ; that judgment be entered affirming final decision of Commissioner. Signed by Magistrate Judge Edward B. Atkins on 5/13/15.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
CIVIL ACTION NO. 0:14-149-EBA
CARLA JO KISER,
V.
PLAINTIFF,
MEMORANDUM OPINION
AND ORDER
CAROLYN W. COLVIN,
Commissioner of Social Security,
DEFENDANT.
I. INTRODUCTION
Plaintiff, Carla Jo Kiser, brought this action under 42 U.S.C. § 405(g) to obtain judicial
review of the Commissioner’s decision to deny her application for disability insurance benefits and
supplemental security income benefits. [R. 12-1 at 1]. Upon consent of the parties, this matter has
been referred to the undersigned to conduct all proceedings and order the entry of final judgment in
accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. [R. 15]. For the reasons set forth herein,
Plaintiff’s Motion for Summary Judgment [R. 12] shall be denied, Defendant’s Motion for Summary
Judgment [R. 16] shall be granted, and Judgment shall be entered affirming the final decision of the
Commissioner.
II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Plaintiff was born in 1967. [Tr. at 135]. She has a high-school education and has worked as
a meat packer, sandwich maker, night-stock clerk, prep cook, and cashier. [Tr. at 77-78]. In her
Disability Report, Form SSA-3368, Plaintiff claimed her work ability was limited due to depression
and bipolar disorder. [Tr. at 315]. Thus, Plaintiff filed for disability insurance benefits and
supplemental security income on July 20, 2012. [Tr. at 69]. The Social Security Administration
denied her claims initially and upon reconsideration. [Tr. at 69]. After denial of her claims, she
requested a hearing before an administrative law judge (“ALJ”). [Tr. at 69]. Subsequently, she
testified at a video hearing held on February 11, 2014 before ALJ Michele M. Kelley. [Tr. at 81].
At the hearing, Plaintiff was represented by counsel, William G. Arnett. [Tr. at 69]. During the
hearing, the ALJ also heard testimony from David Asher Burnhill, a vocational expert. [Tr. at 69].
The ALJ ruled against Plaintiff in a written decision dated February 24, 2014. [Tr. at 66-81].
In her decision, the ALJ found that Plaintiff suffered from the severe impairments of “depression,
anxiety and substance abuse (20 C.F.R. 404.1520(c) and 416.920(c)).” [Tr. at 71]. Despite these
conditions, the ALJ determined that “[t]he claimant does 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 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526).” [Tr. at 72].
Continuing with her evaluation, the ALJ found that Plaintiff retained the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels but with certain nonexertional
limitations, and she set forth her specific limitations in her opinion. [Tr. at 73]. Further, the ALJ
noted that Plaintiff was able to perform past relevant work. [Tr. at 77]. Based on these findings, the
ALJ concluded that Plaintiff was not under a “disability” as defined by the Social Security Act. [Tr.
at 80]. Following the adverse decision of the ALJ, Plaintiff properly exhausted her administrative
remedies by appealing to the Social Security Appeals Council, which denied her request for review.
[Tr. at 1-6].
On October 13, 2014, Plaintiff filed a Complaint in this Court seeking review of the
Commissioner’s decision. [R. 1]. In her Motion for Summary Judgment [R. 12], Plaintiff sets forth
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multiple arguments for reversal of the ALJ’s opinion. Defendant responds that the ALJ’s opinion
should be affirmed, as it is supported by substantial evidence. [R. 16]. The case is now ripe for
review.
III . STANDARD OF REVIEW
A reviewing court must uphold the findings of the ALJ if they are supported by substantial
evidence. 42 U.S.C. § 405(g)(2006); see also Kirk v. Sec’y of Health & Human Servs., 667 F.2d
524, 535 (6th Cir. 1981). 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) (internal citations and quotation marks
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).
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 v. Comm’r Soc. Sec. Admin., 402
F.3d 591, 595 (6th Cir. 2005) (internal citations and quotation marks omitted). Sixth Circuit
precedent suggests that a finding of “no substantial evidence” would be appropriate in situations
where the ALJ ignores uncontested, compelling evidence for one side, makes no express findings
on witness credibility and makes a ruling based on facts with “little if any evidentiary value.” Noe
v. Weinberger, 512 F.2d 588 (6th Cir. 1975); see also Glass v. Sec’y of Health, Educ. & Welfare,
517 F.2d 224 (6th Cir. 1975). Otherwise, if there is substantial evidence to support the ALJ’s
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decision, “it must be affirmed even if the reviewing court would decide the matter differently.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
IV. ANALYSIS
In the present action, the Plaintiff alleges three different errors by the ALJ. Specifically,
Plaintiff asserts that:
1.
The ALJ erred by failing to properly consider all of Plaintiff’s impairments
in determining Plaintiff’s residual functional capacity (“RFC”).
2.
The ALJ erred by relying on non-examining, state-agency physicians rather
than on Plaintiff’s examiners.
3.
The ALJ erred by relying on answers to improper hypothetical questions to
the vocational expert.
Each issue raised by Plaintiff will be considered, in turn, below.
A. Consideration of Plaintiff’s Impairments
The Plaintiff argues that the ALJ failed to properly consider the combined effects of the
Plaintiff’s impairments. [R. 12-1 at 8-10]. More specifically, the Plaintiff asserts that her alleged
physical impairments were not given proper consideration. [R. 12-1 at 8]. The Plaintiff correctly
notes that the regulations expressly require the ALJ to consider the combined effects of any
impairments suffered by a claimant. 20 C.F.R. § 404.1523; Walker v. Sec’y of Health & Hum.
Servs., 901 F.2d 1306, 1310 (6th Cir. 2007). However, the undersigned finds that the ALJ fulfilled
this requirement, by addressing all of the Plaintiff’s alleged physical and mental impairments in her
opinion. [See Tr. at 71-77].
The Sixth Circuit Court of Appeals has held, “[a]n ALJ’s individual discussion of multiple
impairments does not imply that she failed to consider the effect of the impairments in combination.”
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Loy v. Sec’y of Health & Hum. Servs., 901 F.2d 1306, 1310 (6th Cir. 1990); see also Despins v.
Comm’r of Soc. Sec., 257 F. App’x 923, 931 (6th Cir. 2007). Multiple aspects of the ALJ’s report
demonstrate that the ALJ properly considered the combined effect of the Plaintiff’s impairments. For
example, despite analyzing the Plaintiff’s impairments separately, the ALJ noted that he found that
no “combination of impairments” met the listings for disability. [Tr. 72]. Further, the ALJ expressly
reviewed the Plaintiff’s mental impairments [Tr. 72-77] and physical impairments [Tr. 72].
Concerning the Plaintiff’s alleged physical impairments, the ALJ observed that, despite
various diagnoses, examination results throughout the record showed no functional limitations. [Tr.
at 72]. The ALJ did not include physical impairments in the Plaintiff’s residual functional capacity,
or hypothetical questions, because she expressly found that the alleged physical impairments “either
singly or in combination do not prevent the claimant from performing normal activities or daily
living . . . .” [Tr. at 72]; see Foster v. Halter, 279 F.3d 348, 356 (6th Cir. 2001) (stating that the ALJ
is only required to incorporate limitations that she finds credible). In sum, the ALJ complied with
the regulations by considering the combined effects of all of the Plaintiff’s mental and physical
impairments, and the Plaintiff’s argument to the contrary is without merit.
B. Medical Opinions
Plaintiff contends that the ALJ failed to properly weigh several of the medical opinions of
record. More specifically, Plaintiff argues that the ALJ failed to accord sufficient weight to the
opinions of the Plaintiff’s examiners, and accorded too much weight to the opinions of nonexamining, state-agency physicians. [R. 12-1 at 10-12]. As discussed below, Plaintiff’s arguments
regarding the ALJ’s consideration of the medical opinions at issue do not withstand scrutiny.
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Plaintiff contends that the ALJ erred in rejecting the opinion of Dr. Haziq, a medical doctor,
as Haziq had an opportunity to examine Plaintiff. Haziq opined that Plaintiff could lift/carry ten
pounds and occasionally lift/carry twenty pounds; could sit, stand, or walk no more than thirty
minutes at a time; could sit for four hours, stand for two hours, and walk for two hours; had
manipulative limitations in her hands and feet; could never climb ladders or scaffolds; could
occasionally climb stairs and ramps, balance, stoop, kneel, crouch, and crawl; had a variety of
environmental limitations; and could not travel without a companion. [Tr. at 764-69].
Generally, the regulations require an ALJ to give more weight to the opinion of an examining
source. 20 C.F.R. § 404.1527(c)(1). However, an ALJ still must evaluate examining sources’
opinions to determine whether the opinions are “well-supported by medically acceptable clinical
and laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence in
[the] case record.” 20 C.F.R. § 404.1527(c)(3)-(6). Thus, an ALJ may assign less weight to
unsupported and inconsistent opinions.
In reviewing Haziq’s opinion, the ALJ took notice that Haziq’s treatment notes reflected
relatively normal physical examinations. [Tr. at 72] (“Examination of the dorsolumbar spine revealed
normal curvature. There was no pain, tenderness, or spasm in the lower back.”). The ALJ also noted
that Haziq’s conclusions were inconsistent with Haziq’s own objective findings. [Tr. at 79]. As
Haziq’s opinion was unsupported and inconsistent, the ALJ did not error by discounting Haziq’s
opinion regarding Plaintiff’s limitations.1 See 20 C.F.R. § 404.1527(c)(3)-(6).
Additionally, Plaintiff asserts that the ALJ erred in her evaluation of Brittany Shaw’s opinion,
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The ALJ only discounted that portion of Haziq’s opinion relating to Plaintiff’s limitations. In fact,
the ALJ gave great weight to Haziq’s conclusion that Plaintiff had no severe physical impairments. [Tr. at
72].
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but she fails to provide any basis for her claim other than referring to the fact that Shaw was an
examining source. [R. 12-1 at 10-11]. Shaw, a psychologist, opined that Plaintiff had moderate
limitations in her ability to understand, remember, and carry out instructions toward the performance
of simple tasks; had marked limitations in her ability to tolerate stress and the pressure of day-to-day
employment; moderate limitations in her ability to sustain attention and concentration; and marked
limitations in her ability to respond appropriately to supervisors, coworkers, and pressures in the
work setting. [Tr. at 752].
In reviewing Shaw’s opinion, the ALJ specifically noted that Shaw’s limitations were not
supported by her own report. [Tr. at 76]. Indeed, Shaw’s examination showed that Plaintiff had no
difficulty with concentration tests, her recall and memory were normal, and she was cooperative and
oriented. [Tr. at 749-51]. Thus, the ALJ’s reasons for giving Shaw’s opinion no significant weight
are clearly and specifically provided, and they are supported by substantial evidence. [See, e.g., Tr.
at 666, 722, 780, 785, 790, 796, 801, 815] (reflecting that Plaintiff’s depression responded well to
treatment and her psychiatric assessments were normal). The Court finds no error in the ALJ’s
evaluation of Shaw’s opinion.
Similarly, the Court finds no error in the ALJ’s weighing of the opinions of state-agency
physicians Drs. Clay and Cutler. Dr. Cutler assessed that Plaintiff could understand, remember, and
carry out simple and detailed instructions; sustain attention for extended periods of two-hour
segments for detailed tasks; tolerate coworkers and supervisors with occasional interaction with the
public; and adapt to routine changes as needed within these parameters. [Tr. at 141-43]. Dr. Clay
agreed with this assessment. [Tr. at 165-67].
Plaintiff takes issue with the opinions of Drs. Clay and Cutler because they were rendered
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prior to Ms. Shaw’s opinion. [R. 12-1 at 11-12]. However, the opinions of the two state-agency
physicians are supported by evidence throughout the record of Plaintiff’s normal mood, affect, and
behavior. [See, e.g., Tr. at 418, 422, 426, 429-30, 434-35, 438, 441-42, 444, 447, 451, 458]. Further,
“[s]tate agency medical and psychological consultants . . . are highly qualified physicians and
psychologists who are also experts in Social Security disability evaluation.”
20 C.F.R. §
404.1527(e)(2)(I). As such, the ALJ was entitled to rely on their opinions. See 20 C.F.R. §
404.1527(c)(3)-(6) (explaining that ALJ may assign weight to opinions that are “not inconsistent
with the other substantial evidence in [the] case record”); [Tr. at 76]. Accordingly, the Court finds
no error in the weighing of the medical opinion evidence.
C. Hypothetical Questions to the Vocational Expert
Plaintiff’s third argument is that the ALJ should have relied on the vocational expert’s
response to the hypothetical questions posed by Plaintiff’s counsel rather than a less restrictive
hypothetical posed by the ALJ herself. [R. 12-1 at 13]. In response to the ALJ’s hypothetical, which
was based on the ALJ’s assessment of Plaintiff’s RFC, the vocational expert identified examples of
jobs Plaintiff could perform, including Plaintiff’s “past work as material handler, night stocker,
office helper, prep cook, and meat packer.” [Tr. at 78]. However, in response to the severest of
Plaintiff’s counsel’s more restrictive hypothetical questions, which included additional limitations
based on Dr. Haziq’s opinions, the vocational expert indicated that Plaintiff would not be capable
of performing any competitive employment. [Tr. at 131].
As previously explained, the ALJ found that Haziq’s opinions were not consistent with the
overall medical record. In questioning a vocational expert regarding a claimant’s impairment, the
ALJ is not required to include conditions that she finds to be inconsistent with the record as a whole.
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Foster, 279 F.3d at 356 (6th Cir. 2001); see also Casey v. Sec’y of Health & Human Servs., 978 F.2d
1230, 1235 (6th Cir. 1993) (noting that the ALJ is required to incorporate only those limitations that
she finds to be credible).
Nonetheless, Plaintiff claims that the ALJ should have relied on Haziq’s limitations in her
questions to the vocational expert because the ALJ purported to give great weight to Haziq’s
opinion. [R. 12-1 at 13]. However, as previously noted, the ALJ gave great weight only to the
portion of Haziq’s opinion that found Plaintiff did not suffer from severe impairments. See supra
note 1. Plaintiff has not cited any law indicating that an ALJ cannot rely on some portions of an
examiner’s opinion while rejecting others. Indeed, the contrary proposition is supported in case law.
See Szapowal v. Comm’r of Soc. Sec. Admin., No. 1:13-CV-02078, 2015 WL 770327, at *5 (N.D.
Ohio Feb. 23, 2015) (approving of ALJ giving great weight to some portions of a doctor’s opinion
and rejecting other portions). In sum, the Court finds that the ALJ did not err in her reliance on the
particular hypothetical questions she posed to the vocational expert.
V. CONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiff’s Motion for Summary Judgment
[R. 12] be DENIED, Defendant Commissioner’s Motion for Summary Judgment [R. 16] be
GRANTED, and that Judgment be entered affirming the final decision of the Commissioner.
Signed May 13, 2015.
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