Noble v. SSA

Filing 13

MEMORANDUM OPINION & ORDER, 1) denying 11 MOTION for Summary Judgment by Cynthia Dawn Noble 2) granting 12 MOTION for Summary Judgment by Commissioner of SSA.. Signed by Judge Joseph M. Hood on 3/31/17.(SMT)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CYNTHIA DAWN NOBLE,

)
)
) Action No. 0:16-CV-00004-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)

Plaintiff,
v.
NANCY J. BERRYHILL,
Acting Commissioner of
Social Security
Defendant.
**

**

**

**

**

This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 11, 12) on Plaintiff’s appeal of the
Commissioner’s denial of her application for disability insurance
benefits. 1

The matter having been fully briefed by the parties is

now ripe for this Court’s review.
I.
In

determining

whether

an

individual

is

disabled,

an

Administrative Law Judge (“ALJ”) uses 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.
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.
1

These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative record
before the Court.

3. If an individual is not working and has a
severe impairment which “meets the duration
requirement and is listed in appendix 1 or
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)).
II.
In

October

2012,

Plaintiff

protectively

applied

for

disability insurance benefits pursuant to Title II of the Social
Security Act. See 42 U.S.C. §§ 401-33. Her claim was initially
denied on January 2013, then upon reconsideration on February 11,
2013.
On

A written request for hearing was filed on March 11, 2013.

June

18,

2014,

a

video

hearing

was

convened

before

Administrative Law Judge Michele M. Kelley (“ALJ”). Plaintiff’s
application was again denied in the ALJ’s decision dated July 2,

2

2014, and the Appeals Council declined Plaintiff’s request for
review, making the ALJ’s decision the final agency decision for
the purposes of judicial review.

See 20 C.F.R. § 422.210(a).

III.
Plaintiff was 54 years old at the time she allegedly became
disabled on August 17, 2012, and 55 years old at the time of the
Commissioner’s July 2, 2014 final decision that is now before the
Court

(Tr.

197).

Plaintiff

has

a

high

school

education

and

previously worked as an administrative assistant, bank teller and
loan

processor

(Tr.

32,

202).

In

her

application

materials,

Plaintiff alleged she is unable to work due to right wrist pain
and her right leg being shorter than her left (Tr. 201).
Plaintiff has a remote history (approximately five years
before her alleged disability onset date) of sustaining a broken
right arm in a July 2007 automobile accident (Tr. 261). She was
treated at Our Lady of Bellefonte with an impression of a fractured
distal radius provided and surgery was performed the following day
(a closed reduction and percutaneous pinning of the right wrist
with a cast) by Michael Goodwin, M.D. (Tr. 307). Although Plaintiff
subsequently complained of aching, throbbing, and dropping things,
Dr. Goodwin noted that x-rays showed the fracture was healing
“quite well”, movement of her right arm had improved with therapy,
and she was released to full activities in December 2007 (Tr. 304).

3

In

December

2012,

Kip

Beard,

M.D.,

saw

Plaintiff

for

a

consultative physical examination (Tr. 368-373; duplicated at Tr.
374-379).

Dr.

Beard

noted

that

Plaintiff

reported

her

chief

complaints to be right wrist problems and that her right leg was
shorter than her left leg. The December 2012 examination revealed
that, although Plaintiff ambulated with a mildly limping gait, she
was able to able to stand unassisted and did not require a handheld
assistive device. Further, Dr. Beard noted that Plaintiff appeared
comfortable while seated and while supine. Dr. Beard’s physical
examination of Plaintiff revealed that range of motion of the
fingers was normal and that she was able to pick up coins with
either hand and write with the dominant hand without difficulty.
On

neurological

examination,

Dr.

Beard

noted

weakness

in

Plaintiff’s right grip strength that was graded at 4/5 and observed
other issues with respect to her hand. Dr. Beard opined that
Plaintiff would be subject to limitations as to repetitive handling
or repetitive use of the hands such as in data entry, as well as
to prolonged standing, ambu1ation, squatting, walking on steps,
and heavy carrying (Tr. 368-373).
Dr. Beard completed a medical source statement in June 2013,
opining that Plaintiff could perform light exertional work with a
few

exertional,

manipulative,

postural,

and

environmental

limitations (Tr. 380-385). Notwithstanding Dr. Beard’s earlier
observation that Plaintiff’s range of motion in her fingers was
4

normal and she was able to pick up coins with either hand without
difficulty,

Dr.

Beard

opined

that

Plaintiff

could

only

occasionally handle, finger, and feel. Dr. Beard also opined that
Plaintiff was limited to sitting no more than four hours, standing
two hours, and walking two hours in an eight-hour workday despite
previously observing that Plaintiff sat comfortably during her
examination, and that she had only a mildly limping gait, a mild
degree of difficulty arising from a chair and stepping up to the
exam table and mild right hip pain on range of motion testing.
By

contrast,

Jack

Reed,

M.D.,

a

state

agency

medical

consultant, opined that Plaintiff could perform medium exertion
level

work

with

additional

manipulative

and

environmental

limitations, including an ability to push and/or pull (including
operation

of

both

hand

and

foot

controls)

commensurate

with

Plaintiff’s ability to lift and carry; sit about six hours and
stand or walk about six hours in an eight-hour workday; unlimited
reaching

in

any

direction

(including

overhead)

with

limited

handling and fingering with her right upper extremity; and that
Plaintiff should avoid concentrated exposure to vibration.. Dr.
Reed explained his residual functional capacity opinion by noting
that although flexion was limited to 90 degrees, normal range of
motion was otherwise demonstrated, that right grip strength was
graded at 4/5 (that would reasonably account for his opinion
regarding limited handling and fingering with the right upper
5

extremity), and that Plaintiff was able to walk on heels and toes,
perform tandem gait, and could squat (with reported hip pain) and
arise from a squat (Tr. 97-98).
Plaintiff testified that the primary reason she was unable to
work was due to an injury to her right hand and a hip injury that
resulted in one leg being shorter than the other (Tr. 14). She
said that she also had problems with her left hand as well (Tr.
15). She testified that she has pain in her wrist, elbow, and
fingers, and that she has nerve damage in her hand, that two of
her fingers stay numb most of the time, and that her hand swells.
She said that she could not tolerate pain medication (Tr. 16) and
that she wraps her arm and uses a heating pad for the pain.
Plaintiff testified that she wears a brace on her right wrist but
that a doctor had not prescribed it (Tr. 16). She said that she
had trouble holding on or grasping onto things and cannot lift
anything heavy. She also said that she could not pick up money
with her right hand (Tr. 17). She testified that she can sit for
twenty to twenty-five minutes and stand for ten minutes at a time.
She said that she could only type for 15-20 minutes (Tr. 17). She
testified that she had one leg shorter than the other and wears a
built-up shoe (Tr. 18). She testified that she did not drive very
much, no more than two or three times a week (Tr. 15, 20) and that
driving irritates her arm and hand pain, as does rainy weather.
She said that she could only lift and carry milk with her right
6

arm and no more than two pounds with her left arm (Tr. 19-20). She
then indicated that she had made a mistake and that she could only
lift two pounds with her right hand and did not have problems
lifting with her left had if it was not too heavy (Tr. 20). She
said that she could stand for no more than ten minutes at a time
and walk no more than 15 minutes at a time (Tr. 18-19). She said
that she cannot do zippers and buttons (Tr. 24) and wears only
pull-on pants and shirts. She testified, as well, that she plans
out which days during the week she will wash her hair or shave her
legs and that, if she has too much pain in her hand or elbow, that
she simply stands under the water and hopes to get clean enough.
She testified that, while she can wash clothes and cook (Tr. 24),
she is unable to sweep, mop, or vacuum and that she does no yard
work.

She

said

that

she

takes

a

nap

every

day

and

watches

television or reads (Tr. 25).
A vocational expert, Ellen C. Jenkins, testified at the June
18, 2014 administrative hearing (Tr. 31-40) consistently with the
Dictionary of Occupational Titles (Tr. 32). The vocational expert
testified that Plaintiff’s past work was as an administrative
assistant (sedentary exertion), bank teller (light exertion), and
loan processor (sedentary exertion) (Tr. 32). The ALJ asked the
vocational

expert

to

assume

a

hypothetical

individual

of

Plaintiff’s age, education, and work experience with limitations
the same as those ultimately determined by the ALJ to be those of
7

Plaintiff:

“the residual functional capacity to perform a range

of medium work. . . [including] lift and carry and push and pull
25 pounds frequently and 50 pounds occasionally, can sit for 6
hours in an 8 hour day, and can stand or walk for 6 hours in an 8
hour day . . . [and] can frequently handle with the right upper
extremity and must avoid concentrated exposure to humidity and
wetness”

(Tr.

68;

see

also

Tr.

35).

The

vocational

expert

testified that such an individual could perform Plaintiff’s past
relevant work as identified above, as well as other representative
medium and light exertion jobs (Tr. 35-37). The ALJ then asked if
the individual would be able to work if she had other limitations
that were not part of the ALJ’s ultimate residual functional
capacity

determination

but

which

included

the

recommended

limitations from Dr. Beard, the vocational expert concluded that
Plaintiff would not be able perform her past work with those
limitations

because

it

required

frequent

handling,

fingering,

feeling, and occasional pushing and pulling (Tr. 39). Plaintiff’s
counsel had no questions for the vocational expert (Tr. 40-41).
After reviewing the record, the ALJ found that Plaintiff had
severe physical impairments of residual leg length discrepancy
status post right femur fracture with surgery, and residuals of
right radius and ulna fractures with surgery (Tr. 67; Finding No.
3). The ALJ found that Plaintiff’s impairments, singly or in
combination, did not meet or equal the severity of a listed
8

impairment (Tr. 68; Finding No. 4). The ALJ found that Plaintiff’s
complaints of disabling limitations were not fully credible (Tr.
70).

Finally,

the

ALJ

found

that

Plaintiff

had

the

residual

functional capacity to do medium exertion work with additional
postural,
Finding

environmental
No.

5),

and

including

manipulative
her

past

limitations
relevant

(Tr.

work

as

68;
an

administrative assistant, bank teller and loan processor (Tr. 71;
Finding No. 6). In the alternative, the ALJ also determined that
an individual with the same residual functional capacity and
vocational profile as Plaintiff could perform the representative
light exertion position of teller position (utilities); and other
unskilled positions including store laborer, lithography worker,
and gate tender, existing in significant numbers in the national
economy (Tr. 72-73). Thus, the ALJ found that Plaintiff was not
disabled from her alleged disability onset date of August 17, 2012,
through July 2, 2014, the date of the Commissioner’s final decision
(Tr. 73; Finding No. 7).
IV.
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).

“The ALJ’s findings are conclusive as long

as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
9

Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
omitted).

Substantial evidence “means such relevant evidence as

a reasonable mind might accept.” Foster, 279 F.3d at 353.
V.
Plaintiff argues that the ALJ erred in formulating an RFC
which disregarded Dr. Beard’s proposed limitations which were
favorable to her because they were, in fact, consistent with the
medical evidence in the record and, thus, failed to properly assess
and give weight to the medical opinions available in this matter.
She relies on the decision in Lashley v. Sec’y of Health and Human
Servs., 708 F.2d 1048, 1054 (1983), for the proposition that the
ALJ

should

never

disregard

opinions

of

a

consulting

agency

physician that are favorable to a claimant. Lashley does not cast
so broad a net.

Rather, the Lashley court criticized the ALJ’s

decision to disregard the claimant’s own testimony concerning his
mental status wholesale where one examining agency physician’s
concluded that there was no mental impairment but three other
agency

physicians’

examinations

and

conclusions,

in

fact,

corroborated the claimant’s testimony about mental impairment.
The situation in this case is distinct.

No one disputes that

Plaintiff has conditions which result in pain and other symptoms
to which she testified.

The only dispute is whether that pain and

those symptoms caused functional limitations so severe that she
was unable to engage in any substantial gainful activity for a
10

continuous period of at least 12 months. See Barnhart v. Walton,
535 U.S. 212, 220 (2002); 42 U.S.C. § 423(d)(1)(A).

In this

instance,

greater

while

she

testified

that

she

experienced

limitations than those included by the ALJ in the RFC, the ALJ
relied on Plaintiff’s own reports and those of others with respect
to her activities of daily living, as well as objective medical
evidence – including the observations of Dr. Beard – which could
be understood to suggest fewer limitations than proposed by Dr.
Beard in his assessment of Plaintiff’s limitations.
Essentially, Plaintiff argues that the evidence could and
should be weighed differently so as to reach a conclusion that she
is

disabled.

However,

“[i]n

deciding

whether

to

affirm

the

Commissioner's decision, ‘it is not necessary that this Court agree
with the Commissioner's finding, as long as it is substantially
supported in the record.’” Kyle v. Comm'r of Soc. Sec., 609 F.3d
847, 854 (6th Cir. 2010) (quoting Beinlich v. Comm'r of Soc. Sec.,
345 Fed. App’x 163, 167 (6th Cir. 2009)). “Even if this Court might
have reached a contrary conclusion of fact, the Commissioner's
decision must be affirmed so long as it is supported by substantial
evidence.” Id. at 855 (citations omitted). Regardless of whether
the Court would have made the same findings in the first instance,
the Court must affirm the ALJ’s findings in this instance because
they are supported by substantial evidence of record. Id.

11

A claimant’s residual functional capacity is assessed by the
ALJ between steps three and four and is “the most [a claimant] can
still do despite [her] impairments.” 20 C.F.R. §§ 404.1520(a)(4),
404.1545(a)(1) & (5). An ALJ is required to “assess a claimant’s
residual functional capacity based on all of the relevant medical
and other evidence.” 20 C.F.R. § 404.1545(a)(3). Thus, no medical
source opinion is alone conclusive on this issue. SSR 96-5p, 1996
WL

374183,

complaints
disability.

at
of
20

404.1529(c)(4)

*2,
pain

4-5.
or

C.F.R.
(ALJ

Similarly,

other
§

must

a

symptoms

404.1529(a);
consider

claimant’s
cannot
see

alone

also

20

inconsistencies,

subjective
establish
C.F.R.

§

including

conflicts between a claimant’s statements and the medical record).
While there is a limited burden shift to the Commissioner at step
five of the sequential evaluation to identify work existing in
significant numbers in the national economy that a claimant can
perform, the claimant retains the burden of establishing his
residual functional capacity limitations. Jordon v. Comm’r of Soc.
Sec., 548 F.3d 417, 423 (6th Cir. 2008) (citing Her v. Comm’r of
Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999)) (“The SSA’s burden
at the fifth step is to prove the availability of jobs in the
national economy that the claimant is capable of performing . . .
The claimant, however, retains the burden of proving his lack of
residual functional capacity.”).

12

Plaintiff argues that the ALJ could not possibly have given
lesser weight to or rejected Dr. Beard’s conclusion that claimant
could only occasionally handle, finger, and feel on the grounds
that it was inconsistent with his findings that the claimant’s
range of motion in her fingers was normal and that she was able to
pick up coins with either hand without difficulty. Plaintiff cites
to her 4/5 grip strength test performed by Dr. Beard and relies on
his observation of early hypothenar eminence atrophy in her right
hand, consistent with an ulnar nerve impingement and which affects
the muscles of the palm that control the little finger.

She urges

the Court to recognize that these observations and results are
consistent with her testimony that her “pinky finger” and the
finger next to it are frequently numb, that she suffers from
swelling in her hand, and has severe arthritis in both thumbs.
That might be the case, but the observation and diagnosis of
conditions which might reasonably result in the symptoms of which
she complains does not mean that she is necessarily so limited in
her functional abilities as to be disabled.

Rather, the ALJ

appropriately considered whether the conditions for which there
was medical evidence and which, the ALJ concedes, resulted in pain
and other limitations so limited her as to render her disabled.
The ALJ reached a different conclusion from Plaintiff, but that
does

not

make

it

incorrect

from

this

Court’s

perspective.

Ultimately, the Court concludes that it was not disingenuous of
13

the ALJ to give significant weight to the report from Dr. Beard
but not to the limitations proposed by Dr. Beard on the grounds
that they were not supported by objective findings.
The ALJ was under no obligation to accept the conclusions of
the examining consultative agency physician, Dr. Beard, concerning
Plaintiff’s

residual

functional

capacity

and

justifiably

determined that Plaintiff retained the capacity to perform medium
exertion

work

with

additional

non-exertional

limitations

consistent with the performance of her past relevant work and the
representative

positions

as

identified

by

the

vocational,

notwithstanding Dr. Beard’s recommendation. Casey v. Secretary of
Health and Human Services, 987 F.2d 1230, 1235 (6th Cir. 1993)
(“It

is

well

established

that

an

ALJ

.

.

.

is

required

to

incorporate only those limitations accepted as credible by the
finder of fact.”). As “[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), the decision to give more weight to a
reviewing state agency doctor over treating and examining doctors
is, indeed, permissible. Blakley v. Comm'r of Soc. Sec., 581 F.3d
399, 409 (6th Cir. 2009).
It follows that the ALJ did not err in relying on the
testimony of the vocational expert in response to the hypothetical

14

question crafted on the basis of the RFC included in the decision,
and the decision of the Commissioner is affirmed.
Accordingly, for all of the reasons set forth above, IT IS
ORDERED:
1)

that Plaintiff’s Motion for Summary Judgment (DE 11) is

DENIED; and
2)

that Defendant’s Motion for Summary Judgment (DE 12) is

GRANTED.
This the 31st day of March, 2017.

15