Gearheart v. SSA
MEMORANDUM OPINION & ORDER, granting 15 MOTION for Summary Judgment by Galen G. Gearheart, denying 16 MOTION for Summary Judgment by Commissioner of SSA with supporting memorandum. Signed by Judge Joseph M. Hood on 8/18/15.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
GALEN G. GEARHEART,
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
Civil Action No.
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon cross-motions for Summary
Judgment [DE 15, 16] on Plaintiff’s appeal of the Commissioner’s
denial of his application for disability insurance benefits and
supplemental security income.1
For the reasons discussed below,
the Plaintiff’s motion will be granted and Commissioner’s motion
will be denied.
The Commissioner’s decision will be reversed and
the matter will be remanded for further consideration pursuant to
sentence four of 42 U.S.C. § 405(g).
I. Overview of the Process and the Instant Matter
disability, must conduct a five-step analysis:
An individual who is working and engaging in
substantial gainful activity is not disabled, regardless
of the claimant's medical condition.
These are not traditional Rule 56 summary judgment motions.
Rather, it is a procedural device by which the parties bring the
administrative record before the Court.
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.
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
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.
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 & Human 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.”
“If the analysis
reaches the fifth step without a finding that the claimant is not
disabled, the burden transfers to the Secretary.”
substantial gainful activity since January 2011 through his date
last insured of March 31, 2013.
Considering step two, the ALJ
headaches, depression, and anxiety.
The ALJ concluded, however,
that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
After consideration of the record, the ALJ concluded that the
Plaintiff had the residual function capacity to perform “a full
range of work at all exertional levels but with the following
nonexertional limitations: can never climb ladders, ropes, or
scaffolds; must avoid concentrated exposure to hazards such as
remember, and carry out detailed and simple instructions; can
handle occasional changes in the work setting; can frequently
interact with coworkers and supervisors; and can occasionally
interact with the public.”
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.”
Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)
decision is limited to an inquiry into whether the ALJ's findings
were supported by substantial evidence, 42 U.S.C. § 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
See Landsaw v. Sec'y of Health & Human 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
At the time of the ALJ’s decision, Plaintiff was forty-eight
years old and had a significant educational history.
trained as a pharmacist and worked in that field for many years
before becoming incarcerated on unrelated matters.
depression at the VA Medical Center with Jeffrey Jenkins, Psy. D.
At that time, he also reported suffering from cluster headaches,
which he said began when he was serving in the United States Air
Force several years earlier.
In late 2012, Plaintiff underwent diagnostic imaging of the
brain. A CT scan revealed “minimal mucosal thickening involving a
few ethmoid air-cells bilaterally posteriorly.”
An MRI with
contrast showed “no acute intracranial process without evidence of
focal post contrast enhancement.”
He began treatment with a
neurologist, Dr. Lawrence Clapp in November 2012.
Dr. Clapp noted
that, while many medications had failed to decrease the frequency
Plaintiff was also seeing some improvement with the use of antidepressant medication, as well as counseling through the VA.
Brittany Shaw, M.S. performed a consultative psychiatric
examination in February 2013.
She assigned Plaintiff a Global
Assessment of Functioning (GAF) of 55 and found that his capacity
performance of simple repetitive tasks was not affected. She found
that his ability to tolerate the stress and pressure of day-today employment was affected with moderate limitations, however.
She also determined that his ability to respond appropriately to
supervision, co-workers, and work pressures in a work setting was
affected with moderate limitations.
Plaintiff’s neurologist, Dr. Clapp, provided a medical source
statement in July 2014.
Dr. Clapp gave his impression of the
frequency, nature, and severity of Plaintiff’s headaches.
Clapp opined that, due to the nature of the headaches, Plaintiff
would need to take unscheduled breaks from an eight-hour workday
and would be incapable of even low stress jobs.
Dr. Clapp went on
to state that Plaintiff would likely be absent from work more than
four times per month.
reconsideration, Plaintiff filed a written request for a hearing,
which was held in July 2014. On August 13, 2014, the ALJ determined
that Plaintiff was not under a disability.
This timely appeal
The ALJ erred at step three by failing to properly
analyze Plaintiff’s claim that his headaches were
medically equivalent to Listing 11.03.
Even if a claimant cannot demonstrate disability by meeting
a listing, he may be disabled if his impairment is medically
equivalent to a listing.
C.F.R. § 404.1525.
20 C.F.R. § 404.1520(a)(4)(iii); see 20
At the hearing conducted on July 31, 2014,
Plaintiff requested that the “file be looked at by a medical
expert” because Plaintiff believed that Listing 11.03, “Epilespy
– nonconvulsive” was equaled.
Medical findings required for this
listing include “alteration of awareness or loss of consciousness
and transient postictal manifestations of unconventional behavior
or significant interference with activity during the day.”
An ALJ must compare the claimant’s medical evidence with the
condition is equivalent in severity to the medical findings for
any listed impairment.
Reynolds v. Comm’r of Soc. Sec., 424 F.
App’x 411, 415 (6th Cir. 2011).
Here, the ALJ purported to
Listings, which deals with the neurological system overall.
ALJ stated simply that “examination of the claimant has revealed
no focal neurological deficits and the claimant’s headaches appear
to be adequately managed with medication.”
The ALJ went on to
conclude that Plaintiff had no impairment equal in severity to any
listed impairment, “as no treating or examining physician has
mentioned findings equivalent in severity to the criteria of any
The ALJ erred by failing to actually analyze Plaintiff’s
physical condition in relation to the listed impairments.
engaged in a thorough analysis with relation to Plaintiff’s mental
condition, but essentially skipped the step when it came to
Plaintiff’s physical condition.
Since the ALJ did not perform a
meaningful analysis of Plaintiff’s physical condition in relation
supported by substantial evidence.
Plaintiff also contends that the ALJ was required to obtain
an expert medical opinion on the issue of medical equivalency.
Social Security Ruling 96-6p provides that, although the ALJ is
responsible for deciding the ultimate question of whether a listing
is met or equaled, longstanding policy requires that the judgment
of a physician (or psychologist) designated by the Commissioner on
the issue of equivalence on the evidence before the ALJ must be
received into the record as opinion evidence and given appropriate
1996 WL 374180, *3.
The Court has reviewed the ALJ’s
opinion in this matter and fails to identify any discussion of an
expert’s opinion on the issue of equivalence or the weight given
Based on these errors with respect to the issue of
The ALJ erred by failing to provide good reasons for
giving no weight to the opinion of Plaintiff’s treating
neurologist, Dr. Clapp.
The Social Security regulations require that if the opinion
of a claimant’s treating physician is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and “not
inconsistent with the other substantial evidence in the case
record,” it must be given controlling weight.
Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (internal citation
and alteration omitted).
If the treating source’s opinion is not
given controlling weight, the ALJ must apply certain factors, which
include “the length of the treatment relationship and the frequency
relationship, supportability of the opinion, consistency of the
opinion with the record as a whole, and the specialization of the
treating source,” in determining the amount of weight to give the
Even when the treating physician’s opinion is not
given controlling weight, there remains a rebuttable presumption
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th
Here, the ALJ gave “no weight” to the opinion of Dr. Clapp,
Plaintiff’s treating neurologist.
The reason given was simply
that the limitations assigned by Dr. Clapp were “excessive and
inconsistent with the objective evidence of record.”
failed to discuss any of the other factors outlined above and
failed to provide an explanation for the drastic decision to give
no weight to the opinion of a treating specialist.
The Court also
regarding the weight assigned to the opinions of any of the medical
reconsideration and so that the ALJ may better articulate his
reasons for the weight given to the various opinions he relies
upon in this matter.
The ALJ’s credibility determination is supported by
There is no question that the subjective complaints of a
Plaintiff can support a claim for disability if there is also
objective medical evidence to establish an underlying medical
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th
An ALJ is not required to accept a claimant’s
subjective complaints, however, and may consider the credibility
Id. at 476.
Additionally, the ALJ may present a
hypothetical to the vocational expert based on his own assessment,
rather than the plaintiff’s subject claims, if the ALJ deems the
claimant’s testimony to be inaccurate.
Here, the ALJ found
reasonably be expected to cause the allege symptoms, but found
that Plaintiff’s statements regarding the intensity, persistence,
and limiting effects of the symptoms were not entirely credible.
To support his finding of diminished credibility, the ALJ
cited what he determined to be several inconsistencies in the
First, Plaintiff was seeking work in late 2012, which the
Further, he cited what he perceived as Plaintiff’s
high level of daily function, which included housework, managing
bills, caring for his elderly mother, and grocery shopping.
also cited Plaintiff’s statements from April 2014 in which he
reported that Lyrica was helping his headaches.
cited portions of the record showing that Plaintiff’s GAF indicated
only moderate symptoms.
Based on the foregoing, the ALJ has
pointed to substantial evidence upon which he based his credibility
determination and it will not be disturbed.
Accordingly, IT IS ORDERED:
that the Commissioner’s motion for summary judgment, [DE
16], is DENIED;
that Plaintiff’s motion for summary judgment, [DE 15],
is GRANTED; and
that the Commissioner’s decision is REVERSED and this
action is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).
This the 18th day of August, 2015.
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