Skaggs v. SSA

Filing 19

ORDER: For the foregoing reasons, it is ORDERED that the Plaintiff's Motion for Summary Judgment R. 17 shall be DENIED, the Defendant Commissioner's Motion for Summary Judgment R. 18 shall be GRANTED, and Judgment shall be entered affirming the final decision of the Commissioner of Social Security. Signed by Magistrate Judge Edward B. Atkins on 2/26/16.(KSS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
CIVIL ACTION NO. 0:14-cv-182-EBA
BRADFORD TERRY SKAGGS,
PLAINTIFF,
v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

DEFENDANT.

I. INTRODUCTION
Plaintiff Bradford Terry Skaggs brings this action under 42 U.S.C. § 405(g) to challenge
the Defendant Commissioner’s final decision denying his application for a period of disability
and disability insurance benefits (DIB). This matter has been referred to the undersigned to
conduct all further proceedings and order entry of judgment in accordance with 28 U.S.C. §
636(c) and Fed. R. Civ. P. 73. [R. 11]. Now ripe for decision on the parties’ cross-motions for
summary judgment, and for the reasons set forth herein, it is ordered that Plaintiff’s Motion for
Summary Judgment [R. 17] be denied, Defendant’s Motion for Summary Judgment [R. 18] be
granted, and judgment be entered affirming the Commissioner’s final decision.
II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
On November 29, 2011, Claimant Bradford Terry Skaggs filed a Title II application for a
period of disability and Disability Insurance Benefits, alleging disability beginning on July 6,
2011. [R. 2-2 at 4]. The claim was initially denied on February 16, 2012, and was denied again
upon reconsideration on July 17, 2012. [Id.]. On July 29, 2012, Claimant filed a written request
for a hearing pursuant to 20 C.F.R. § 404.929 et seq., and subsequently appeared and testified at
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a hearing held on July 23, 2013. [Id.]. At the hearing, Claimant was represented by attorney
William G Arnett, and attorney Tina Frederick was also present at the hearing to represent
Claimant. Dwight McMillion, an impartial vocational expert, also attended and testified at the
hearing. Regarding the issue of whether Claimant qualified as disabled, the Administrative Law
Judge (“ALJ”) Michele M. Kelley concluded that Claimant was not under a disability within the
meaning of Social Security Act §§ 216(i) and 223(d), from July 6, 2011, through the August 21,
2013 date of the ALJ’s decision. [Id.].
The Court notes that ALJ Michele Kelley, who ultimately denied Claimant’s disability
claim, considered his claim in accordance with the five-step evaluation process per the Social
Security Administration’s regulations. See C.F.R. § 404.1520(a); Jones v. Comm’r of Soc. Sec.,
336 F.3d 469, 474 (6th Cir. 2003); [R. 2-2 at 4–8]. The ALJ first found Claimant met the insured
status requirements of the Social Security Act through December 31, 2016. [R. 2-2 at 6]. At
step one, the ALJ determined Claimant had not engaged in substantial gainful activity since July
6, 2011, the onset date of Claimant’s alleged disability. [Id.]. At step two, the ALJ determined
Claimant suffered from the severe impairments of “degenerative disc disease of the lumbar spine
and soft tissue and degenerative joint disease of the right knee,” but despite Claimant’s
depression and anxiety claims, the ALJ found no evidence of abnormal mental status on the
record. [Id.] The ALJ determined that, while Claimant receives treatment for hypertension and
hyperlipidemia, these impairments are not severe, but further determined Claimant’s
degenerative lumbar disc and right knee joint disease were severe. [Id. at 7]. At step three, the
ALJ determined Claimant “[did] not have an impairment or combination of impairments” that
met or medically equaled 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). [Id.].
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At the residual functional capacity (“RFC”) determination stage prior to step four, the
ALJ determined:
[C]laimant has the residual functional capacity to perform a range of light work as
defined in 20 C.F.R. § 404.1567(b) except he can only frequently climb ramps
and stairs, stoop, kneel, crouch, and crawl; and only occasionally climb ladders,
ropes, or scaffolds. He should avoid all exposure to hazards such as uneven
surfaces, unprotected heights, and dangerous moving machinery.
[Id.]. In making this finding, the ALJ considered all symptoms reasonably accepted as consistent
with the objective medical evidence and other evidence, in accordance with 20 C.F.R. §
404.1529 and SSRs 96-4p and 96-7p.

Notably, the ALJ also determined that Claimant’s

credibility was “fair,” where Claimant “allege[d] his ability to sit, stand, and walk are severely
limited; yet, he and his father report[ed] the claimant still goes hunting . . . claimant's father also
reported the claimant engages in more activity than the claimant admitted during the hearing . . .
[i]t appears the claimant has exaggerated the extent of his pain and limitations to some degree.”
[Id. at 9].
Finally, at step five, the ALJ concluded that, “considering the claimant’s age, education,
work experience, and residual function capacity, there are jobs that exist in significant numbers
in the national economy that the claimant can perform 20 C.F.R. § 404.1569 and 404.1569(a).”
[R. 2-2 at 10]. To determine the extent of Claimant’s limitations, the ALJ asked the vocational
expert a series of hypothetical questions regarding whether jobs exist in the national economy for
a hypothetical individual of Claimant’s age, education and work experience.

[Id.].

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vocational expert testified that, given all factors, Claimant “would be able to perform the
requirements of other light and sedentary unskilled work.” [Id.]. Specifically, the vocational
expert determined Claimant could perform light-level jobs of “counter clerk” and “machine
operator,” and sedentary level jobs of “inspector” and “security monitor.”
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[Id.].

After

consideration of the entire record, the ALJ found Claimant has the residual functional capacity to
perform a range of light work as defined in 20 C.F.R. § 404.1567(b), “except that he can only
frequently climb ladders, ropes, or scaffolds.” [R. 12-4 at 39].
On August 21, 2013, after considering all evidence on the record, the ALJ determined
“claimant has not been under a disability, as defined in the Social Security Act, from July 6,
2011, through the date of this decision (20 C.F.R. § 404.1520(g)),” and ultimately determined
Claimant was not disabled under §§ 216(i) and 223(d) of the Social Security Act.

[Id.].

Following this adverse decision, Claimant properly exhausted his administrative remedies by
appealing to the Social Security Appeals Council, [R. 2-1 at 1–6], and the Appeals Council
denied the request for review on appeal and affirmed the ALJ’s decision on November 4, 2014.
[Id.]. On December 18, 2014, Plaintiff initiated the present action by filing his Complaint in the
United States District Court for the Eastern District of Kentucky. [R. 2]. The matter is now
before the undersigned on the parties’ cross-motions for summary judgment. [Rs. 17 and 18].
III. STANDARD OF REVIEW
A reviewing court must uphold the findings of the ALJ if they are supported by
substantial evidence, and if correct legal standards were applied. See 42 U.S.C. § 405(g); Kirk v.
Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981); Richardson v. Perales, 402
U.S. 389, 390, 401 (1971). The Sixth Circuit has held that “substantial evidence exists when a
reasonable mind might accept the relevant evidence as adequate to support a conclusion.”
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (internal citations
omitted); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (internal citations
and quotation marks omitted).

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A reviewing court may not try the case de novo, resolve conflicts in the evidence, or
decide questions of credibility. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir.
2012). The responsibility for determining a claimant’s residual functional capacity is reserved to
the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2), 404.1545. In making this determination,
the ALJ is required to resolve any conflicts within the evidence and incorporate only those
limitations that she finds credible in the residual functional capacity assessment. See Casey v.
Sec’y of Health & Human Servs., 987 F.2d 1230, 1234–35 (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, 596 (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 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).

Finally, any issues “adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.” See United
States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996), quoted in Kennedy v. Comm’r of Soc. Sec.,
87 F. App’x 464, 466 (6th Cir. 2003) (unpublished).

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IV. ANALYSIS
Plaintiff presents two arguments on summary judgment: 1) whether the ALJ failed to
adequately give a good reason for assigning little weight to treating physician Dr. Ira Potter,
relative to the greater weight given to non-examining agency physician Dr. John Gedmark and to
other non-treating physicians; and 2) whether the ALJ erred by giving greater weight to Dr.
Gedmark although his opinion was not based upon substantial evidence nor based upon
Plaintiff’s complete file. [R. 17-1 at 10–13]. Each of Plaintiff’s arguments are without merit,
and the ALJ’s final determination denying Plaintiff Bradford Terry Skaggs’ disability shall be
affirmed.
Plaintiff first argues that the ALJ was required to give Plaintiff’s treating physician Dr.
Potter more weight over non-treating physicians, adding Dr. Potter was the “only physician in
the case that gave an opinion and who has a longitudinal picture of Mr. Skaggs’ true impairments
and disabilities.” [R. 17-1 at 11]. Though acknowledging that the ALJ’s decision explained Dr.
Potter’s “findings [were] inconsistent with the EMG studies,” [Id. at 10], Plaintiff still contends
the ALJ “failed to give adequate reasons for discounting the treating physician’s RFC.” [Id. at
11]. Yet the Court finds the ALJ properly considered the record as a whole in denying Plaintiff’s
disability; the record shows the ALJ weighed multiple expert opinions and conflicting evidence,
made credibility determinations as to Plaintiff’s testimony and the opinions of treating and nontreating physicians, and concluded that the record supported the vocational expert’s finding that
Plaintiff could perform a limited range of light work. [R. 12-4 at 38–40].
Essentially, Plaintiff asks the Court to now reconsider the ALJ’s credibility
determinations regarding treating physician Dr. Ira Potter, insisting that Dr. Potter’s opinions
deserved more weight over that of Dr. John Gedmark and other non-treating physicians.
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However, while true that a treating physician’s opinions are generally entitled to substantial
deference, see, e.g., Shelman v. Heckler, 821 F.2d 316 (6th Cir. 1987), the ALJ may choose to
give greater weight to non-treating physicians if “substantial evidence” exists on the record to
support this decision. See, e.g., Cutlip, 25 F.3d 284. Accordingly, the Court’s present review is
limited only to whether the ALJ’s findings, credibility and otherwise, were supported by
“substantial evidence.” See 42 U.S.C. § 405(g); Kirk, 667 F.2d at 535 (6th Cir. 1981).
Plaintiff asserts that the ALJ gave no good reason for “discounting” Dr. Potter’s RFC.
[R. 17-1 at 11]. However, the ALJ did not discount Dr. Potter’s opinion entirely, but rather,
reasonably weighed it against other opinions in light of the entire record. The ALJ adequately
considered the opinions of Dr. Potter, Dr. Gedmark, Dr. Stauffer, Dr. Gruberman, and two
workers’ compensation physicians, all of whom provided at least some evidence to support the
finding that Plaintiff could perform a limited light range of work. See, e.g., [R. 12-5 at 28–30];
[R. 13-1 at 20, 27, 87, 105; [R. 13-2 at 82–85]; [R. 13-3 at 62–66]. For example, Dr. Stauffer
indicated Plaintiff could perform a range of light work not involving the repetitive use of his
hands, [R. 13-1 at 20], the two workers’ compensation doctors expressed Plaintiff had no workrelated restrictions and could return to his previous work as a pipefitter, [Id. at 87, 105], and
agency physician Dr. Gedmark opined Plaintiff could perform the equivalent of a range of light
work involving frequent postural activities and occasionally climbing ladders, ropes, and
scaffolds. [R. 12-1 at 28–30]. Even treating physician Dr. Potter previously indicated that
Plaintiff could manage a “lighter form of work” once he recovered from his injury. [R. 13-1 at
27].
Further, the ALJ heard evidence regarding Plaintiff’s physical tests conducted by two
neurosurgeons which yielded largely normal results; following their determinations that surgery
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was unnecessary and Plaintiff should instead seek epidural injections, Plaintiff deferred to follow
their medical advice at that time. [R. 13-1 at 6]; [R. 13-2 at 53–54]. Such failures to seek
treatment “may be a factor to be considered against the plaintiff.” Hale v. Sec’y of Health and
Human Services, 816 F.2d 1078, 1082 (6th Cir. 1987).

Lastly, regarding Plaintiff’s own

credibility, the ALJ determined the credibility of Plaintiff’s complaints to only be “fair,” finding
he had exaggerated the extent of his pain and limitations to some degree.

[R. 2-2 at 9].

Ultimately, the ALJ weighed Dr. Potter’s opinion that “Plaintiff could lift up to 15 pounds and
also had a limited ability to sit, stand, and walk,” found this opinion was inconsistent with the
minimal objective findings and evidence surrounding the recorded treatments, and opted to give
his opinion little weight. [R. 12-4 at 41]. Because the Sixth Circuit makes clear that treating
physician opinions are “only afforded great weight when they are supported by sufficient clinical
findings and are consistent with the evidence,” Cutlip, 25 F.3d at 287 (emphasis added), such a
decision was reasonable since Dr. Potter’s opinions proved inconsistent with other medical
opinions.
The ALJ’s findings of credibility are entitled to great deference. See Anthony v. Astrue,
266 F. App’x 451, 460 (6th Cir. 2008) (unpublished) (citing King v. Heckler, 742 F.2d 968, 974–
75 (6th Cir. 1984)). Even if this Court would have reached a different conclusion regarding the
credibility of Dr. Potter’s opinions, finding “substantial evidence in the record . . . supported an
opposite conclusion,” the Court could not reverse the ALJ’s decision on that basis. Longworth,
402 F.3d at 595 (6th Cir. 2005). Because the record is wrought with conflicting opinions
regarding the extent of Plaintiff’s physical limitations, the Court defers to the ALJ’s findings. In
short, the ALJ found Dr. Gedmark’s opinion that Plaintiff could perform the equivalent of a
range of light work consistent with the record, and consequently gave that opinion great weight.
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[R. 12-4 at 41].

Where substantial evidence supports these findings, the Court shall not

reevaluate the ALJ’s credibility determinations. Plaintiff’s claim that the ALJ lacked good
reason for discounting Dr. Potter’s opinions is meritless.
Secondly, Plaintiff argues that the ALJ erred by giving significant weight to the opinion
of non-treating physician Dr. Gedmark, though his opinion was not based upon the complete
record nor upon substantial evidence. [R. 17-1 at 12]. Plaintiff cites to the proposition in Jones
v. Astrue, 808 F. Supp. 2d 993 (E.D. Ky. 2011), that the opinions of non-reviewing examiners
who did not review the complete record could not be used to support the decision denying
benefits. Id. at 998–99. However, while the District Court in Jones seems to suggest that, when
an ALJ affords more weigh to a non-examining physician over an examining physician, only the
most recent opinions are credible since they account for all preceding opinions, the Sixth Circuit
has established that no such completeness rule or requirement exists. See SSR 96-6P, 1996 WL
374180, *3 (July 2, 1996). In Helm v. Comm’r of Soc. Sec. Admin., 405 F. App’x 997 (6th Cir.
2011), the Sixth Circuit stated that:
[t]here is no categorical requirement that the non-treating source’s opinion be
based on a “complete” or “more detailed and comprehensive” case record. The
opinions need only be “supported by evidence in the case record.” Once the ALJ
determined not to accord [the treating physician’s] opinion “controlling weight,”
the ALJ was required only to provide “good reasons” for giving greater weight to
the opinions of agency sources.
Id. at 1002 (addressing SSR 96-6P) (internal citations omitted); see also Fry v. Comm’r Soc. Sec.
Admin, 476 F. App’x 73, 75 (6th Cir. 2012) (“According to [plaintiff], [the non-examiner’s]
opinion was inadequate because it was based on a review of the record before she began
treatment with [her treating physician]. However, the ALJ properly considered [the nonexaminer’s] report as opinion evidence.”) (citing 20 C.F.R. § 404.1527)). As the Sixth Circuit

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rule stands, when an ALJ decides not to afford a treating physician controlling weight, the ALJ
need only provide good reasons for assigning greater weight to the non-examiner(s). Helm, 405
F. App’x at 1002. As discussed in detail above, the ALJ provided sufficiently good reasons for
doing precisely that.
Despite Plaintiff’s reliance on Jones, [R. 17-1 at 13], this Court is bound only by the
Sixth Circuit precedent set forth in Helm and Fry, and accordingly, the Court finds the ALJ’s
determination to give non-examining physician Dr. Gedmark’s 2012 opinion greater weight
reasonable, notwithstanding the fact that he “only had an opportunity to review a limited portion
of the evidence of record” at that time. [Id.]. For this reason, Plaintiff’s second claim will also
be denied.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED that the Plaintiff’s Motion for Summary
Judgment [R. 17] shall be DENIED, the Defendant Commissioner’s Motion for Summary
Judgment [R. 18] shall be GRANTED, and Judgment shall be entered affirming the final
decision of the Commissioner of Social Security.
Signed February 26, 2016.

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