Noe v. SSA
MEMORANDUM OPINION & ORDER: 1) Commissioner's motion for summary judgment 9 is GRANTED; 2) Plf's motion for summary judgment 6 is DENIED. Signed by Judge Joseph M. Hood on 9/30/2011.(KRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON
JAMIE ANN NOE,
) Civil Action No. 2:10-CV-135-JMH
MEMORANDUM OPINION & ORDER
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
This matter is before the Court upon cross-motions for summary
judgment on the plaintiff's appeal of the Commissioner's denial of
her application for Supplemental Security Income and Disability
Insurance Benefits [Record Nos. 6, 9].1 The Court, having reviewed
the record and being otherwise sufficiently advised, will deny the
plaintiff's motion and grant the defendant's motion.
OVERVIEW OF THE PROCESS AND THE INSTANT MATTER
disability, conducts 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 motions for summary
judgment. 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
If an individual is not working and has a severe
impariment 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 and Human Services, 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 CFR § 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."
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. Cutlip v. Sec'y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Instead, judicial review of the ALJ's decision is limited to an
substantial evidence, 42 U.S.C. § 405(g), Foster v. Halter, 279
F.3d 348, 353 (6th Cir. 2001), and whether the ALJ employed the
proper legal standards in reaching his conclusion, see Landsaw v.
Sec'y of Health and Human Servs., 803 F.2d 211, 213 (6th Cir.
"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 adequate to support
Cutlip, 25 F.3d at 286.
III. FACTUAL AND PROCEDURAL BACKGROUND
In his September 1, 2009, decision, Administrative Law Judge
(“ALJ”) Roger L. Reynolds determined that Plaintiff did not have an
impairment or combination of impairments that met or medical
equaled one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 416.920(d), 416.925, and 416.926).
The ALJ found, after careful review of the record, including
Plaintiff’s subjective testimony at the administrative hearing,
that Plaintiff had the following severe impairments: Hepatitis C
degenerative disc disease of the lumbar spine.
The ALJ determined
that Plaintiff did not have an impairment or combination of
Impairments found at 20 C.F.R. pt. 404, subpt. P, app. 1.
With respect to her ability to perform work, he found that she
had a residual functional capacity to perform light work as defined
in 20 C.F.R. 416.967(b). Contrary to Plaintiff’s allegations of
disability, the ALJ found that she retained the residual functional
capacity (“RFC”) to perform a reduced range of light work activity:
The claimant can lift/carry/push/pull 20
pounds occasionally, 10 pounds frequently;
stand/walk 6 hours in an 8-hour workday; and
sit 6 hours in an 8-hour workday. She can
never climb ladders, ropes, or scaffolds and
is limited to only occasionally climbing ramps
and stairs, stooping, kneeling, crouching, or
crawling. The claimant can have no exposure to
concentrated vibration, temperature extremes,
or industrial hazards.
Given that Plaintiff had no relevant work experience, the ALJ
significant numbers in the national economy that Plaintiff could
perform. See 20 C.F.R. pt. 404, subpt. P, app. 2, table no. 2.
Ultimately, the ALJ concluded that Plaintiff was not under a
disability at any time through September 1, 2009, the date of the
administrative and judicial remedies, and this matter is ripe for
review and properly before this Court under § 205(c) of the Social
Security Act, 42 U.S.C. § 405(g).
She challenges the Commissioner’s conclusion at step three
that she did not meet a Listing 5.05 for liver disease, his
conclusion at step four with respect to her residual functional
capacity, and, by extension, his conclusion at step 5 that she
could perform the jobs identified by the vocational expert.
the reasons which follow, the Court affirms the decision of the
In her brief, Plaintiff argues that the ALJ should have
evaluated her condition under section 5.05B of the Listings for
chronic liver disease and that he failed to do so.
this argument, the Court notes that, contrary to Plaintiff’s
assertion that the ALJ failed to evaluate her condition under
Listing 5.05, the ALJ did acknowledge that Plaintiff had been
“recently diagnosed with Hepatitis C; however, the evidence does
not satisfy the criteria of Section 5.05.”
He continued, finding
. . . the record is devoid of evidence of
esophageal varices with a documented history
of massive hemorrhage attributable to these
varices, performance of a shunt operation for
esophageal varices, serum bilirubin of 2.5 mg.
per deciliter or greater persistent on
repeated examination for at least 5 months,
hepatic encephalopathy, or confirmation of
chronic liver disease by liver biopsy.
The criteria of the listings are demanding and stringent. See
Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994).
specifies “the objective medical and other findings needed to
satisfy the criteria of that listing.” 20 C.F.R. § 404.1525(c)(3).
requirements of the Listings, Plaintiff “must satisfy all of the
criteria to meet the listing.” Rabbers v. Commissioner of Social
Security Admin., 582 F.3d 647, 653 (6th Cir. 2009) (citing 20
C.F.R. § 404.1525(c)(3)).
Plaintiff has come forward with no
erroneous because, in fact, she met the criteria of that Listing.
Certainly, there is evidence that she had a surgical procedure
in November 2006, that she required a transfusion of two units of
blood, and that she began hemorrhaging following a total abdominal
hysterectomy for abnormal uterine bleeding, uterine fibroid, and
ovarian cyst – but not as the result of chronic liver disease.
There is also evidence that she suffered from Hepatitis C and had
begun a course of treatment related to that disease. This does not
mean, however, that she has met Listing 5.05, and the ALJ did not
err in determining that she did not.
Plaintiff also argues that the ALJ erred when he did not
accept the physician capacities evaluation prepared by her treating
physician, Kerry Burte, in which her physician indicated that she
was extremely limited in terms of her ability to do work.
May 2009 evaluation, Dr. Burte opined that Plaintiff would be
unable to lift or carry more than ten pounds occasionally.
numerous other limitations, Dr. Burte also opined that Plaintiff
would be unable to stand/walk more than two hours or sit more than
two hours during an eight-hour day. Dr. Burte indicated that these
limitations were due to “extreme” pain in Plaintiff’s back and hips
from three “herniated discs.”
It was the ALJ’s duty to consider and weigh all of the
Medical source opinions of treating physicians are to be
given great weight unless the ALJ articulates good reasons for not
giving the opinions great weight. See 20 C.F.R. § 404.1527; Wilson
v. Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir.
If a treating source opinion is not supported by objective
medical evidence, however, the ALJ is entitled to give the opinion
less weight as long as he sets forth good reasons for the weight
given the treating source opinion. See 20 C.F.R. § 416.927(d)(2);
see also Bass v. McMahon, 499 F.3d 506, 512 (6th Cir. 2007) (noting
reversal not required where treating opinion was not ignored and
Here, the ALJ considered Dr. Burte’s opinion of Plaintiff’s
functional capacity but rejected it with good reason.
noted that, contrary to Dr. Burte’s assertion in the evaluation of
Plaintiff’s functional abilities, there was no medical evidence
that Plaintiff had three herniated discs in her lumbar spine.
Indeed, Plaintiff has not pointed to any evidence of record to the
The ALJ also noted that Plaintiff’s reported daily
activities, including reports that she was caring for her severely
ill mother in 2008 (which care included lifting and helping her
mother to get up and down) and lifting her child (albeit with
reported pain), were inconsistent with the functional limitations
to which Dr. Burte opined.
In his decision, the ALJ discussed Dr. Burte’s opinion at
length and provided good reasons, supported by the record evidence,
for not giving the opinion controlling weight.
Thus, he did not
err when he declined to adopt the limitations articulated there for
See Allen v. Comm’r of Social Security, 561 F.3d 646,
651 (6th Cir. 2009); Wilson, 378 F.3d at 544.
In this regard, the Court notes that a lumbar MRI performed
in December 2006 did reveal bulging discs at L3-4 and L4-5 with no
evidence of focal disc protrusion or significant compression of the
Lumbar x-rays performed at Dr. Burte’s request in
April 2009 demonstrated “normal appearing vertebral bodies and no
Plaintiff also argues that the ALJ failed to evaluate the
cumulative effect of her ailments. Specifically, she complains
that he failed to consider her recent diagnosis with hepatitis C,
the symptoms of that disease and the extensive treatment that she
would require for that, and the hematological disorders in from
which she suffers in determining her RFC. The reality is, however,
that he did consider her impairments together [see AR at 19] and
ultimately determined that they would impact her ability to perform
some work-related activities. Her real complaint is that he did
not reach the conclusion that she and her treating physician would
reach – that this combination of impairments precluded her from
performing all work related activities.
As explained above,
however, the ALJ properly rejected the limitations to which her
treating physician opined.
For the foregoing reasons, IT IS ORDERED:
That the Commissioner's motion for summary judgment
[Record No. 9] be, and the same hereby is, GRANTED; and
That Plaintiff's motion for summary judgment [Record No.
6] be, and the same hereby is, DENIED.
This the 30th day of September, 2011.
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