Blevins v. SSA
Filing
12
MEMORANDUM OPINION & ORDER, 1) decision of SSA is found to be supported by substantial evidence and is AFFIRMED 2) denying 10 MOTION for Summary Judgment by Terry Blevins 3) granting 11 MOTION for Summary Judgment by Commissioner of SSA. A Judgment in favor of dft Commissioner will be entered herewith. Signed by Judge David L. Bunning on 6/21/16.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
CIVIL ACTION NO. 15-28-DLB
TERRY BLEVINS
V.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
CAROLYN W. COLVIN,
Commissioner of Social Security
**
**
DEFENDANT
**
**
**
**
** **
Plaintiff Terry Blevins 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.
Having reviewed the record and the parties’ dispositive motions, and for the reasons set
forth herein, the Court will affirm the Commissioner’s decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 14, 2012, Plaintiff Terry Blevins filed his application for Supplemental
Security Income (“SSI”) and Disability Insurance Benefits (“DIB”), alleging disability as of
December 1, 2008.
(Tr. 161-167).
Plaintiff’s claim was denied initially and on
reconsideration. (Tr. 73-100 and 101-102). On January 8, 2014, Administrative Law
Judge Maria Hodges conducted an administrative hearing at Plaintiff’s request. (Tr. 2652). ALJ Hodges ruled that Plaintiff was not entitled to benefits on February 6, 2014. (Tr.
8-25). This decision became the final decision of the Commissioner when the Appeals
Council denied review on March 27, 2015. (Tr. 1-7).
1
On May 10, 2015, Plaintiff filed the instant action. (Doc. # 2). This matter has
culminated in cross-motions for summary judgment, which are now ripe for the Court’s
review. (Docs. # 10 and 11).
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. 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 that 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
2
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
since the application date. (Tr. 13).
At Step 2, the ALJ found Plaintiff’s history of
degenerative disc disease to be a severe impairment within the meaning of the regulations.
(Id.).
At Step 3, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments listed in, or medically equal to, an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15). In making this determination, the ALJ
noted that Plaintiff’s impairments do not meet or equal Listing 1.02(A), 1.02(B), or 1.04.
(Id.).
At Step Four, the ALJ concluded that Plaintiff has the residual functional capacity
(“RFC”) to perform light work, as defined in 20 C.F.R. § 416.967(c), with the following
restrictions:
[H]e can occasionally push and pull with the left lower extremity; would need
a sit/stand option at one hour intervals; can occasionally climb ramps or
stairs; may never climb ladders, ropes or scaffolds; can frequently balance;
may occasionally stoop, kneel, crouch and crawl; and must avoid
concentrated exposure to vibrations and cold.
(Id.). Based on this RFC, the ALJ concluded that Plaintiff was unable to perform any of his
past relevant work. (Tr. 19).
Accordingly, the ALJ proceeded to the fifth and final step of the sequential
evaluation, and found that there were a significant number of jobs in the national economy
that Plaintiff could perform. (Id.). The ALJ based this conclusion on testimony from a
3
vocational expert (“VE”), in response to a hypothetical question assuming an individual of
Plaintiff's age, education, work experience, and RFC. (Tr. 19-20). The VE testified that a
hypothetical individual with Plaintiff's vocational profile and RFC could perform the
requirements of representative occupations at the light and sedentary levels of exertion,
and gave specific examples of a non-governmental mail clerk, price marker, surveillance
system monitor, and sorter. (Tr. 20). Based on the testimony of the VE and Plaintiff’s age,
education, work experience, and RFC, the ALJ found that Plaintiff is capable of making a
successful adjustment to other work and thus concluded that he was not under a
"disability," as defined by the Social Security Act. (Id.).
C.
Analysis
Plaintiff’s counsel sets forth two arguments for the Court’s consideration. First,
Plaintiff argues that the “ALJ failed to give adequate reasons for discounting the treating
and examining physician, Dr. Scott Arnett’s RFC.” (Doc # 10-1 at 5). Second, Plaintiff
claims that the “ALJ’s findings of light work with a sit/stand option violates” Social Security
Ruling (“SSR”) 83-12. Both of these arguments will be addressed in turn.
1.
The ALJ did not err in discounting the opinions of Dr. Scott Arnett.
In Social Security disability cases, medical evidence may come from treating
sources, non-treating sources, and non-examining sources. 20 C.F.R. § 404.1502. A
treating source is the claimant’s “own physician, psychologist, or other acceptable medical
source who provides [claimant], or has provided [claimant], with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship with [claimant].”
Id.; see also Abney v. Astrue, Civ. A. No. 5:07-394-KKC, 2008 WL 2074011, at *11 (E.D.
Ky. May 13, 2008) (stating that one meeting is insufficient to establish an ongoing
4
treatment relationship). A non-treating source is an acceptable medical source who has
examined the claimant but does not have an ongoing treatment relationship with him or
her, while a non-examining source has not examined the claimant but has provided
medical or other opinion evidence in the case. Id.
A treating source’s opinion is entitled to controlling weight if the “opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with other substantial evidence in [his or her] case record.” 20 C.F.R. § 404.1527(c)(2).
If the opinion is not entitled to controlling weight, the ALJ must decide how much weight
to give it by considering the length, frequency, nature, and extent of the treatment
relationship; evidence in support of the opinion; consistency of the opinion with evidence
in the record; physician’s specialization; and other factors brought to the ALJ’s attention.
20 C.F.R. § 404.1527(c)(1)-(6). These same factors guide the ALJ in determining how
much weight to give a non-treating or non-examining source’s opinion. Id.
Upon referral from his attorney, Plaintiff was examined by Dr. Arnett in November
2012. (Tr. 17). Dr. Arnett also completed an RFC assessment in January 2013, “at which
time he noted that there was a diagnosis of lumbar degenerative disc disease; thoracic
degenerative disc disease; left hip osteoarthritis and degenerative changes; and
hypertension. (Tr. 409). On the pre-printed RFC form, Dr. Arnett opined that Plaintiff “was
able to work four hours in an eight hour day; stand/walk less than two hours in an eight
hour day; sit three hours in an eight hour day; lift 10 pounds occasionally and five pounds
frequently; could never bend, stoop or climb ladders; could occasionally balance and climb
stairs; could occasionally use his bilateral hands for repetitive action; and would miss more
5
than four days a month. (Tr. 19; 409). The ALJ accorded little weight to Dr. Arnett’s
assessment of the Plaintiff’s RFC. (Tr. 19).
Although Plaintiff acknowledges that the ALJ gave reasons for discounting Dr.
Arnett’s RFC assessment, Plaintiff complains that the ALJ “failed to give adequate reasons
for discounting the treating and examining physician, Dr. Scott Arnett’s RFC.” (Doc. # 10-1
at 5). Specifically, the Plaintiff argues that “the ALJ’s allegations that there are no objective
clinical or laboratory findings is preposterous,” and that the ALJ’s determination that “there
are no findings that limit the [Plaintiff’s] ability to sit, stand, and walk,” and that “Dr. Arnett’s
RFC fails to relate his limitations to any specific findings” are errors. Id. at 5-7.
The record belies Plaintiff’s assertion. In rendering his RFC assessment, the ALJ
explained that he was giving little weight to Dr. Arnett’s opinion due to the short length of
treatment history, lack of objective clinical or laboratory findings to support the degree of
limitation, and Dr. Arnett’s failure to relate his opinion to any specific findings.1 (Tr. 19).
Specifically, the ALJ reasoned:
In this case, there is a lack of objective clinical or laboratory findings to
support the degree of limitation that Dr. Arnett finds. The medical record
reveals no significant evidence of neurologic compromise, which would affect
the claimant’s ability to stand, walk, or sit to the degree as indicated. In
addition, he does not relate his opinion to any specific findings; his opinion
is not supported by reports, which indicate only routine outpatient care, with
little or no continuing treatment or use of prescribed medication; and his
assessment is inconsistent with the claimant’s self-reported activities of daily
living. The undersigned also notes that the claimant only recently sought
1
It is unclear from the ALJ’s Hearing Decision, as well as the parties’ briefing, whether Dr,
Arnett was considered a treating or non-treating source. However, the ALJ noted that there
was a “lack of objective clinical or laboratory findings to support the degree of limitation.”
(Tr. 19). Therefore, even if a treating opinion, the ALJ sufficiently explained why Dr.
Arnett’s opinion was not entitled to controlling weight, and then discussed the factors
required by 20 C.F.R. § 404.1527(c)(1)-(6).
6
treatment from Dr. Arnett upon referral from his attorney. The undersigned,
therefore, gives little weight to Dr. Arnett’s assessment of the claimant’s
residual functional capacity.
(Id.). Because the ALJ explained how much weight she gave to the opinion of Dr. Arnett,
whether considered a treating or non-treating source, and because she detailed her
reasons for doing so in accordance with 20 C.F.R. § 404.1527(c), the Court finds no error
in this portion of the ALJ’s Step 4 analysis.
Furthermore, it does not matter if the substantial evidence does support Plaintiff’s
disability, so long as it also supports a finding of “not disabled.” Her, 203 F.3d at 389-90
(holding that “[e]ven if the evidence could also support another conclusion, the decision of
the Administrative Law Judge must stand if the evidence could reasonably support the
decision reached”) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). As a result,
it does not matter if Plaintiff, or even this Court, believes substantial evidence supports a
different disability determination. All that is required of the ALJ is that she render a
decision that is supported by substantial evidence. The ALJ has done so here.
2.
The ALJ’s finding of light work with a sit/stand option does not violate
Social Security Ruling 83-12.
Lastly, Plaintiff argues that the “ALJ’s findings of light work with a sit/stand option
violate the state agency Social Security Ruling 83-12.” (Doc. # 10-1 at 8). Specifically,
Plaintiff claims that the “ALJ erred in not entering a favorable decision and the vocational
expert failed to provide adequate testimony to support the agency’s ruling.” Id.
Social Security Ruling 83-12 provides that:
In some disability claims, the medical facts lead to an assessment of RFC
which is compatible with the performance of either sedentary or light work
except that the person must alternate periods of sitting and standing. The
7
individual may be able to sit for a time, but must then get up and stand or
walk for awhile before returning to sitting. Such an individual is not
functionally capable of doing either the prolonged sitting contemplated in the
definition of sedentary work (and for the relatively few light jobs which are
performed primarily in a seated position) or the prolonged standing or
walking contemplated for most light work. (Persons who can adjust to any
need to vary sitting and standing by doing so at breaks, lunch periods, etc.,
would still be able to perform a defined range of work.)
There are some jobs in the national economy--typically professional and
managerial ones--in which a person can sit or stand with a degree of choice.
If an individual had such a job and is still capable of performing it, or is
capable of transferring work skills to such jobs, he or she would not be found
disabled. However, most jobs have ongoing work processes which demand
that a worker be in a certain place or posture for at least a certain length of
time to accomplish a certain task. Unskilled types of jobs are particularly
structured so that a person cannot ordinarily sit or stand at will. In cases of
unusual limitation of ability to sit or stand, a VS should be consulted to clarify
the implications for the occupational base.
SSR 83-12; 1983 WL 31253 (emphasis added).
Therefore, SSR 83-12 does not mandate a finding of disability when a claimant has
an alternate sitting and standing limitation. Bradley v. Sec. of Health & Human Servs., 862
F.2d 1224, 1227 (6th Cir. 1988) (“... a claimant is not disabled simply based on a need to
alternate between sitting, standing and walking if a vocational expert can identify ... jobs
... that can be performed within the claimant’s limitations.”). Instead, it requires the ALJ to
do precisely what the ALJ did here: consider the Plaintiff’s sit/stand limitation, and if it is
an unusual limitation of ability, consult a Vocational Expert (“VE”) to determine the
limitation’s implication on the disability determination. The ALJ did just this.
The VE testified that “given all of these factors [Plaintiff] would be able to perform
the requirements of representative occupations at the light and sedentary levels of
exertion.” (Tr. 20).
The VE provided several specific examples, including: non-
governmental mail clerk and price marker at the light level and surveillance system monitor
8
and sorter at the sedentary level. (Tr. 50). The ALJ then asked the VE: “If you added to
that that the person would need a sit/stand option at one hour intervals, what impact, if any
would that have?” Id. The VE testified that “it would reduce the range of the light jobs and
the numbers of the examples that I gave would be reduced by 50 percent. The sedentary
jobs would remain intact.” Id.
Therefore, the ALJ complied with SSR 83-12 by
incorporating the sit/stand limitation, consulting the VE regarding that specific limitation,
and finding that Plaintiff could perform work existing in significant numbers in the national
and regional economy. There is substantial evidence in the record to support the ALJ’s
conclusion that Plaintiff is not disabled.
III. CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)
The decision of the Commissioner is found to be supported by substantial
evidence and is hereby AFFIRMED;
(2)
Plaintiff’s Motion for Summary Judgment (Doc. # 10) is hereby DENIED; and
(3)
Defendant’s Motion for Summary Judgment (Doc. # 11) is hereby GRANTED.
A Judgment in favor of Defendant Commissioner will be entered contemporaneously
herewith.
This 21st day of June, 2016.
K:\DATA\SocialSecurity\MOOs\Ashland\15-28 Blevins MOO.wpd
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?