Blair v SSA
Filing
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MEMORANDUM OPINION & ORDER: IT IS ORDERED (1) that Plaintiff's Motion for Summary Judgment DE 13 be, and the same hereby is, DENIED; and (2) that Defendant's Motion for Summary Judgment DE 14 be, and the same hereby is GRANTED. Signed by Judge Joseph M. Hood on 8/19/16.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
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JAMES K. BLAIR
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Civil Action No.
0:15-cv-52-JMH
MEMORANDUM OPINION AND ORDER
Defendant.
***
This matter is before the Court on the parties’ cross-motions
for summary judgment [DE 13 and 14] on Plaintiff’s appeal of the
Commissioner’s denial of his application for disability insurance
benefits and supplemental security income. [Tr. 31-47].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
In determining disability under the Social Security Act, the
Administrative Law Judge (“ALJ”), 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.
1
These are not traditional Rule 56 summary judgment motions. Rather, they are procedural devices by which the
parties bring the administrative record before the Court.
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.
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
reaches the fifth step without a finding that the claimant is not
disabled, the burden transfers to the Secretary.”
Id.
In the case at bar, the ALJ concluded the Plaintiff had not
engaged
in
substantial
activity
satisfying step one. [Tr. 36].
since
October
1,
2012,
thus
Under step two, the ALJ found the
Plaintiff had the following severe impairments: major depressive
disorder, atrial fibrillation, nonischemic dilated cardiomyopathy,
2
canal stenosis, degenerative disc disease, and obesity. [Tr. 36];
20 CFR 404.1520(c), 416.920(c).
In regards to step three, the ALJ
determined that the 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. pt. 404,
subpt. P, app. 1. [Tr. 37-39].
At step four the ALJ concluded the Plaintiff had a residual
functional capacity (“RFC”) to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b), subject to certain stipulations.
[Tr. 39].
First, the Plaintiff could only stand four hours out of
an eight-hour workday and never climb ladders, ropes, or scaffolds.
[Tr. 39]. Second, Plaintiff could occasionally climb ramps and
stairs and frequently stoop, kneel, crouch, or crawl. [Tr. 39].
Third, Plaintiff should have no exposure to heights and avoid
concentrated
exposure
temperature extremes.
to
moving
[Tr. 39].
machinery,
hazards,
and
Fourth, Plaintiff would be
afflicted with chronic pain noticeable to himself at all times but
could maintain attention and concentration in two-hour increments
with normal morning, lunch, and afternoon breaks. [Tr. 39]. Fifth,
the job would have to be of a simple nature, not a complex or
detailed job, and should be low or non-stress with no strict
production quotas. [Tr. 39].
Further, the ALJ found that the
Plaintiff was unable to perform any past relevant work as a
flooring installer. [Tr. 45].
3
Under
step
five,
and
considering
the
Plaintiff’s
age,
education, work experience, and RFC, the ALJ opined that there
were jobs that existed in significant numbers in the national
economy that the Plaintiff could perform. [Tr. 45].
II. Standard of Review
In reviewing the ALJ’s decision to deny disability insurance
benefits and supplemental security income, 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. § 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 his conclusion.
See Landsaw v. Sec’y of Health & Hum. Servs., 803 F .2d 211, 213
(6th
Cir.1986).
Substantial
evidence
review
relies
upon
the
following inquiry: Did the ALJ use “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion”?
Taskila v. Commr. of Soc. Sec., 15-2224, 2016 WL 1533996, at *2
(6th Cir. Apr. 15, 2016) (citing Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).
III. Background
4
On April 18, 2014, Plaintiff filed a Title II application for
disability and disability insurance benefits in addition to a Title
XVI application for supplemental security income. [Tr. 249; 255].
The alleged injury onset date is October 1, 2012. Plaintiff is
currently 40 years old and was 36 years old at the date of the
alleged injury. [Tr. 93). Plaintiff dropped out of high school
after completing the eighth grade [Tr. 353] and despite multiple
attempts, was unable to pass the GED exam. [Tr. 86]. After his
early departure from high school, Plaintiff began working as a
manual laborer installing flooring. [Tr. 73]. Plaintiff performed
this work for a period of approximately 12 years. [Tr. 73].
Plaintiff claims that he has become disabled and unable to
work due to a combination of physical and mental ailments. [Tr.
93-94]. In particular, Plaintiff states he suffers from congestive
heart
failure,
leaky
valves,
atrial
fibrillation,
high
blood
pressure, back problems, depression, and memory problems. [Tr. 9394].
Plaintiff’s
claims
were
denied
initially
and
again
upon
reconsideration. [Tr. 158; 172]. Plaintiff requested a hearing,
which took place on February 24, 2015. [Tr. 91]. The ALJ heard
testimony from the Plaintiff, a vocational expert (“VE”), and two
medical experts. [Tr. 52]. The VE, Dr. Anthony T. Michael Jr. (“Dr.
Michael”),
testified
that
although
5
Plaintiff
could
no
longer
perform his prior job as a flooring installer, he could perform
other jobs that exist in the national economy. [Tr. 89].
After considering all of the evidence in the administrative
record, including the testimony of the Plaintiff, VE, and medical
experts, the ALJ issued an unfavorable decision denying disability
insurance benefits on April 8, 2015. [Tr. 47]. The Appeals Council
denied Plaintiff’s request for review on June 22, 2015. [Tr. 1].
Plaintiff has exhausted his administrative remedies and this case
ripe for review pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3).
IV. Analysis
Plaintiff argues that the ALJ committed errors by (1) by not
giving controlling weight to the opinions or Dr. Emily Skaggs and
Dr. John VanDeren; (2) by giving great weight to the opinion of
Dr.
Alexander;
(3)
in
its
credibility
determination
of
the
Plaintiff; and (4) by finding that Plaintiff could perform work
that exists in significant numbers in the national economy.
(A)
The ALJ did not err in assigning no weight to the opinion
of Dr. Emily Skaggs and little weight to the opinion of
Dr. John VanDeren.
Dr. Emily Skaggs evaluated the Plaintiff on August 11, 2014.
[Tr. 353]. Dr. Skaggs diagnosed the Plaintiff with a “Major
Depressive Disorder, Severe.” [Tr. 355]. Specifically, Dr. Skaggs
noted limitations with the Plaintiff’s memory and ability to
tolerate stress within the confines of a work environment. [Tr.
356]. The ALJ assigned this opinion no weight because it was “not
6
supported
by
the
objective
findings
including
the
narrative
report.” [Tr. 44]. Plaintiff argues that the ALJ erred in failing
to give Dr. Skagg’s opinion controlling weight.
Dr. John VanDeren evaluated the Plaintiff in February of 2015.
[Tr. 854]. Dr. VanDeren concluded that given his heart problems,
Plaintiff was incapable of tolerating low levels of work stress.
[Tr. 832]. Dr. VanDeren further noted several limitations to the
Plaintiff’s ability to function in a work setting. [Tr. 834-36].
Specifically, Dr. VanDeren concluded that the Plaintiff would
require
unscheduled
breaks
and
would
need
to
avoid
extreme
conditions. [Tr. 835]. Further, the Plaintiff and would need to be
afforded more than four absences per month. [Tr. 835]. The ALJ
gave little weight to this opinion because it was not supported by
treatment notes. [Tr. 43]. Plaintiff argues that the ALJ erred in
failing to give Dr. VanDeren’s opinion controlling weight.
“An ALJ must give the opinion of a treating source controlling
weight
if
he
finds
the
opinion
‘well-supported
by
medically
acceptable clinical and laboratory diagnostic techniques’ and ‘not
inconsistent with the other substantial evidence in [the] case
record.’ ” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir.2004) (quoting 20 C.F.R. § 404.1527(c)(2)). The ALJ may decide
not to assign controlling weight to a treating source, but in so
doing must provide specific reasons. Id.
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Here, the ALJ provided specific reasoning for not assigning
controlling weight to Dr. Skagg’s opinion that the Plaintiff had
“marked” limitations in his memory, ability to carry out simple
tasks, and tolerate the stress of a typical work day. [Tr. 356].
This
determination
is
supported
by
substantial
evidence.
The
record reveals that the Plaintiff neither receives treatment nor
takes medication for mental health impairments, and that Dr. Skaggs
did not actually evaluate Plaintiff (a licensed psychological
practitioner in her office did). [Tr. 44; 356; 416-756]. Therefore,
the Court finds that the ALJ did not err in assigning no weight to
the opinion of Plaintiff’s treating physician, Dr. Skaggs.
In addition, the ALJ gave specific reasoning for assigning
limited weight to the opinion of Dr. VanDeren. [Tr. 43]. The ALJ
noted he “considered in part” the limits Dr. VanDeren noted.
The
ALJ cites a lack of sufficient objective findings within the
attached notes of Dr. VanDeren’s medical report regarding the
Plaintiff. [Tr. 43]. This Court agrees that Dr. VanDeren’s report
fails
to
establish
a
rational
connection
between
Plaintiff’s
medical history and a finding that the Plaintiff is entirely
incapable of performing even low stress work. Therefore, the Court
finds that the ALJ did not err in assigning little weight to the
opinion of Plaintiff’s treating physician, Dr. VanDeren.
(B)
The ALJ did not err in assigning great weight to the opinion
of Dr. Hayden Alexander.
8
Dr.
Hayden
Alexander
reviewed
the
medical
history
of
the
Plaintiff prior to the February 24, 2015 hearing. [Tr. 62-67].
During the hearing, Dr. Alexander gave a detailed synopsis of the
Plaintiff’s medical complications followed by an opinion regarding
the
Plaintiff’s
work
capacity
and
limitations.
[Tr.
62-67].
Specifically, Dr. Alexander opined that the Plaintiff’s heart
problems were controllable when he took his medicine. [Tr. 65].
Based
on
a
scenario
in
which
the
Plaintiff
was
taking
his
medications as prescribed, Dr. Alexander applied a RFC which
included several limitations that were later echoed in the ALJ’s
final decision. [Tr. 66]. The ALJ gave great weight to the opinion
of Dr. Alexander because he gave an adequate explanation and his
findings were buttressed by the medical record as a whole. [Tr.
44]. Plaintiff argues that the ALJ erroneously gave great weight
to the opinion of Dr. Alexander because he did not treat the
Plaintiff and is not himself a cardiologist.
Nontreating and nonexamining sources are weighed based on the
examining
relationship,
specialization,
consistency,
and
supportability, but only if a treating-source opinion is not deemed
controlling. Gayheart v. Commr. of Soc. Sec., 710 F.3d 365, 376
(6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)). Other factors
“which tend to support or contradict the opinion” may be considered
in assessing any type of medical opinion. Id. Since the opinions
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of Dr. Skaggs and Dr. VanDeren were not deemed controlling, the
legal standard cited in Gayheart controls the analysis.
Although not a cardiologist, Dr. Hayden is well-versed in
reading cardiac related reports.
During his medical residency Dr.
Hayden trained with cardiologist Dr. Tinsley Randolph Harrison
[Tr. 63]. Dr. Alexander has testified on numerous occasions with
regards to claimants with heart complications. [Tr. 63]. Most
importantly, Dr. Alexander’s testimony is consistent with the
record as a whole. The Plaintiff’s medical record suggests that
his failure to take medication has on multiple occasions caused
atrial fibrillation episodes and other irregular cardiac activity.
[Tr.
416-756].
Plaintiff
employs
Conversely,
a
regular
the
record
medication
shows
that
regimen,
his
when
the
ejection
fraction numbers are normal. [Tr. 416-756]. The Court finds the
ALJ’s decision to assign great weight to the opinion of Dr.
Alexander was supported by substantial evidence.
(C)
The ALJ did not error in finding that the Plaintiff is not
fully credible.
The ALJ found that the Plaintiff suffers from legitimate
medical ailments. [Tr. 40] The ALJ concluded, however, that the
Plaintiff’s statements regarding the intensity, persistence, and
limiting effects of these ailments were not credible. [Tr. 40].
“It is of course for the ALJ, and not the reviewing court, to
evaluate the credibility of witnesses, including that of the
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claimant.” Rogers v. Commr. of Soc. Sec., 486 F.3d 234, 247-48
(6th
Cir.
2007).
“Whenever
a
claimant's
complaints
regarding
symptoms, or their intensity and persistence, are not supported by
objective medical evidence, the ALJ must make a determination of
the credibility of the claimant in connection with his or her
complaints ‘based on a consideration of the entire case record.’”
Id. Lastly, inconsistency in the record, although not fatal, tends
to discredit the assertions of the claimant. Id. at 248.
In finding the Plaintiff not fully credible, the ALJ pointed
to
particular
discrepancies
between
the
Plaintiff’s
alleged
limitations and facts contained in the record. [Tr. 41-45]. First,
Plaintiff’s October 21, 2014 emergency room visit purportedly
resulted from the Plaintiff mishandling sheetrock. [Tr. 42; 756].
This fact, the ALJ noted, “suggests [Plaintiff] is certainly not
as limited as alleged.” [Tr. 42]. Second, the ALJ concluded that
the Plaintiff’s own account of his daily activities support the
notion that he functions “fairly well.” [Tr. 42]. Specifically,
the ALJ stated that the Plaintiff plays cards, reads, and uses
Facebook. [Tr. 42]. Moreover, not only does the Plaintiff perform
these activities, but by his own admission, does them well. [Tr.
42]. The ALJ noted that these activities, paired with several
others, suggest that the Plaintiff’s limitations regarding his
memory and ability to follow instructions are not as severe as he
contends.
[Tr.
42].
Third,
the
11
ALJ
opined
that
because
the
Plaintiff
does
psychological
not
receive
disorders,
it
any
is
treatment
likely
or
that
medication
he
is
not
for
as
psychologically limited as alleged. [Tr. 43].
The ALJ appropriately considered the discrepancies between
the record and Plaintiff’s assertions regarding the intensity,
persistence, and limiting effects of his ailments. Based on his
assessment, the ALJ found the Plaintiff not fully credible and
gave an adequate explanation for his determination. The Court finds
the ALJ’s credibility determination of the Plaintiff was supported
by substantial evidence.
(D)
The ALJ did not err in concluding that Plaintiff could
perform work that exists in significant numbers in the
national economy.
This Court reviews the ALJ’s finding that the Plaintiff, with
certain limitations2, has the RFC capacity as defined in 20 CFR
404.1567(b) and 416.967(b). Further, the Court reviews the ALJ’s
conclusion that the RFC attributed to the Plaintiff renders him
able to perform the following types of jobs: inspector, light
2
“After careful consideration of the entire record, the undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he could only
stand 4 hours out of an 8‐hour workday and never climb ladders, ropes, or scaffolds. He may occasionally climb
ramps and stairs and frequently stoop, kneel, crouch, or crawl. The claimant should have no exposure to heights
and avoid concentrated exposure to moving machinery, hazards, and temperature extremes. He would be afflicted
with chronic pain noticeable to himself at all times but could maintain attention and concentration in two‐hour
increments with normal morning, lunch, and afternoon breaks. The job would have to be of a simple nature not
complex or detailed job and should be low or non‐stress with no production quotas.” [Tr. 39].
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exertion; garment bagger, light exertion; and assembler, light
exertion. [Tr. 46].
In deciding an appropriate RFC for the Plaintiff, the ALJ
relied upon the opinions of Dr. Alexander, Dr. Gedmark, and Dr.
Reed. [Tr. 43-44].
After reviewing the Plaintiff’s comprehensive
medical history, Dr. Alexander concluded that the Plaintiff could
perform light work. [Tr. 62-66].
Dr. Alexander listed limitations
to Plaintiff’s day-to-day capabilities within a hypothetical work
setting. [Tr. 66].
Dr. Gedmark and Dr. Reed are both state agency
medical consultants. [Tr. 44]. On July 1, 2014, Dr. Gedmark filled
out a physical assessment form in which he concluded the Plaintiff
could perform light work. [Tr. 100-102]. In addition, Dr. Gedmark
listed exertional, postural, and environmental limitations. [Tr.
100-102]. Dr. Reed affirmed the determination of Dr. Gedmark on
September 17, 2014. [Tr. 130-33]. The ALJ gave great weight to the
opinions of Dr. Gedmark and Dr. Reed citing adequate explanations
and consistency with Dr. Alexander’s conclusions. [Tr. 44].
Based the on the RFC and the limitations suggested by the
medical experts, the VE, Dr. Michael, concluded that there would
be opportunities for the Plaintiff to engage in substantial gainful
activity. [Tr. 89]. The VE provided three examples of jobs that
the
Plaintiff
could
limitations. [Tr. 89].
perform
with
his
medical
diagnosis
and
First, Dr. Michael opined the Plaintiff
could perform work as an inspector. [Tr. 89]. Dr. Michael noted
13
that there are 66,000 such positions in the nation and 5,000 in
the immediate region. [Tr. 89]. Second, Dr. Michael opined that
the Plaintiff could obtain employment as a garment bagger at the
light level. [Tr. 89].
Data indicated there are 10,000 garment
baggers in the nation and 1,000 in the region. [Tr. 89]. Lastly,
Dr. Michael suggested that the Plaintiff could find work as an
assembler. [Tr. 90]. Dr. Michael stated that there are 39,000 such
positions in the nation; 2,500 of which work in the region. [Tr.
90].
The ALJ is not bound by any particular medical opinion and
should base a claimant's RFC on “all of the relevant medical and
other evidence.” Paul v. Astrue, 827 F. Supp. 2d 739, 745 (E.D.
Ky. 2011) (quoting 20 C.F.R. § 404.1545). Further, “[T]he testimony
of a VE is the preferred method of evaluating whether a claimant
is
capable
of
returning
to
past
relevant
work
or
making
a
successful adjustment to other work found in significant numbers
in the national economy.” Clubb v. Astrue, 3:06-CV-72-KKC, 2008 WL
131202, at *3 (E.D. Ky. Jan. 11, 2008).
The ALJ relied on the opinions of three medical experts in
attributing an RFC to the Plaintiff: Dr. Alexander, Dr. Gedmark,
and Dr. Reed. [Tr. 31-47]. These opinions are rooted in experience,
supported by evidence and explanation, and reflect the record as
a whole.
In addition, the ALJ relied upon the testimony of the
VE, Dr. Michael, to conclude that Plaintiff could perform work
14
that exists in significant numbers in the national economy. [Tr.
31-47].
Dr. Michael’s testimony was supported by data and there
was no objection in terms of his credibility.
The ALJ’s findings
were supported by substantial evidence and consistent with the
record; therefore, the Court finds that the ALJ did not err in
concluding that there are jobs that exist in significant numbers
in the national economy that Plaintiff.
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
(2) that Defendant’s Motion for Summary Judgment [DE 14] be,
and the same hereby is, GRANTED.
This the 19th day of August, 2016.
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