Messer v. SSA

Filing 17

MEMORANDUM OPINION AND ORDER; 1)Pla's 15 Motion for Summary Judgment is OVERRULED and Def's 16 Motion for Summary Judgment is SUSTAINED; 2)A judgment in favor of the Def will be entered conctemporaneously. Signed by Judge Henry R. Wilhoit, Jr. on 3/24/2014. (LST)cc: COR

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

at COVINGTON

Civil Action No. 13-1S-HRW

CHRISTINE MESSER,
v.

PLAINTIFF,

MEMORANDUM OPINION AND ORDER

MICHAEL J. ASTRUE

COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge
a final decision of the Defendant denying Plaintiff's application for disability
insurance benefits and supplemental security income benefits. The Court having
reviewed the record in this case and the dispositive motions filed by the parties,
and being otherwise sufficiently advised, for the reasons set forth herein, finds that
the decision of the Administrative Law Judge is supported by substantial evidence
and should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed her current application for disability insurance benefits and
supplemental security income benefits, alleging disability beginning on May 5,
1999. This application was denied initially and on reconsideration. On March
30,2011, an administrative hearing was conducted by Administrative Law Judge

Christopher McNeil (hereinafter "ALl"), wherein Plaintiff, accompanied by
counsel, testified. At the hearing, Donald Shrey, Ph.D., a vocational expert
(hereinafter "VE"), also testified.
At the hearing, pursuant to 20 C.F .R. § 416.920, the ALl performed the
following five-step sequential analysis in order to determine whether the Plaintiff
was disabled:
Step 1: If the claimant is performing substantial gainful work, he is not
disabled.
Step 2: If the claimant is not performing substantial gainful work, his
impairment( s) must be severe before he can be found to be disabled based
upon the requirements in 20 C.F.R. § 416.920(b).
Step 3: If the claimant is not performing substantial gainful work and has a
severe impairment (or impairments) that has lasted or is expected to last for
a continuous period of at least twelve months, and his impairments (or
impairments) meets or medically equals a listed impairment contained in
Appendix 1, Subpart P, Regulation No.4, the claimant is disabled without
further inquiry.
Step 4: If the claimant's impairment (or impairments) does not prevent him
from doing his past relevant work, he is not disabled.
Step 5: Even if the claimant's impairment or impairments prevent him from
performing his past relevant work, if other work exists in significant
numbers in the national economy that accommodates his residual functional
capacity and vocational factors, he is not disabled.

Subsequently, the ALl issued his decision finding that Plaintiff was not

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disabled (Tr. 22-32).
Plaintiff was thirty-five on the date of the ALJ's decision (Tr. 31, 106).
Plaintiff has a ninth grade education and past relevant work experience as a
cashier (Tr. 115, 122). Plaintiff alleges she is unable to work due to scoliosis,
degenerative disc disease of her lumbar spine, carpal tunnel syndrome, atrophic
right kidney, depression and anxiety, history of a MSRA infection, bilateral foot
and ankle pain, restless leg syndrome, severe sleep apnea, obesity, hypertension
and irritable bowel syndrome (IBS).
The ALJ found Plaintiff had a combination of severe impairments, including
degenerative changes in the lumbar spine, degenerative changes in the left
ankle/foot, depressive disorder, panic disorder, pain disorder, and borderline
intellectual functioning (Tr. 25); however, she did not have an impairment or
combination of impairments that met or equaled one of the listed impairments at
20 C.F.R. pt. 404, subpt. P, app. 1, including Listing 1.04(A) (Tr. 28,). The ALJ
determined that Plaintiff retained the residual functional capacity (RFC) to
perform medium work activity, with the following additional limitations: she can
push or pull 50 pounds frequently, 25 pounds occasionally with hand or foot
controls; stand or walk about six hours and sit about six hours in an eight-hour
day; cannot climb ladders, ropes or stoop, kneel, crouch, or crawl; must avoid
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concentrated exposure to hand-held vibrating tools and whole body exposure to
vibration (Tr. 29). Due to mental impairments, the ALJ determined Plaintiff had
the following mental limitations: understand and remember simple instructions;
sustain attention to complete simple repetitive tasks where production quotas are
not critical; tolerate co-workers and supervisors with limited interpersonal
demands in an object-focused nonpublic work setting; and adapt to routine
changes in a simple work setting (Tr. 29). Given this RFC, the ALJ determined
Plaintiff would be unable to return to her past relevant work (Tr. 31). Relying on
vocational expert (VE) testimony, the ALJ found Plaintiff retained the RFC to
perform other jobs existing in significant numbers in the national economy (Tr.
31-32). As a result, the ALJ determined Plaintiff was not disabled (Tr. 32).
The Appeals Council denied Plaintiff s request for review and adopted the
ALl's decision as the final decision of the Commissioner. Plaintiff thereafter
filed this civil action seeking a reversal of the Commissioner's decision. Both
parties have filed Motions for Summary Judgment and this matter is ripe for
decision.
II. ANALYSIS
A.

Standard of Review

The essential issue on appeal to this Court is whether the ALl's decision is
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supported by substantial evidence. "Substantial evidence" is defined as "such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion;" it is based on the record as a whole and must take into account
whatever in the record fairly detracts from its weight. Garner v. Heckler, 745 F.2d
383,387 (6th Cir. 1984). If the Commissioner's decision is supported by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth

and Human Services, 667 F.2d 524,535 (6 th Cir. 1981), cert. denied, 461 U.S. 957
(1983). "The court may not try the case de novo nor resolve conflicts in evidence,
nor decide questions of credibility." Bradley v. Secretary ofHealth and Human

Services, 862 F.2d 1224, 1228 (6th Cir. 1988). Finally, this Court must defer to the
Commissioner's decision "even if there is substantial evidence in the record that
would have supported an opposite conclusion, so long as substantial evidence
supports the conclusion reached by the ALl." Key v. Callahan, 109 F.3 d 270, 273
(6th Cir.1997).
B.

Plaintiff's Contentions on Appeal

Plaintiff contends that the ALl's finding of no disability is erroneous
because: (1) the ALl did not properly consider the opinion of consultative
psychologist Mark Kroger; (2) the ALl did not properly evaluate Plaintiffs
credibility and (3) the ALl improperly relied upon the testimony of the VE.
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C.

Analysis of Contentions on Appeal

Plaintiff's first claim of error is that the ALJ did not properly consider the
opinion of consultative psychologist Mark Kroger.
Plaintiff underwent a psychological consultative evaluation with Mark
Kroger, M.S., on September 9, 2009. (Tr. 286-294). He administered IQ testing,
which revealed that Plaintiff's Verbal IQ was 75, her Performance IQ was 75, and
her Full Scale IQ was 73 (all within the borderline range of intelligence). (Tr.
290). He reported that Plaintiff had moderate deficits in her ability to differentiate
essential from non-essential details, in her mental arithmetic reasoning, and in her
short term auditory memory skills. Id. He further reported she had mild deficits in
her general learning ability and language development, in her general fund of
information and long term memory, in her ability to interpret social situations, and
in her social judgment and use of common sense. Id. Plaintiff obtained scores on
the Wide Range Achievement Test Revision Four (WRAT-4) which were
equivalent to grade 6.5 in math computation, grade 7.7 in spelling, and grade 8.1
in word reading. Id.
Dr. Kroger also administered the Symptom Assessment 45 (SA 45)
Questionnaire, which he explained was an objective measure of symptom
presence. (Tr. 291). He reported that Plaintiff had a "severe" elevation on the scale
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associated with phobic anxiety, "moderate" elevation on the scales associated with
anxiety, depression, obsessive-compulsive tendencies, somatic tendencies,
interpersonal sensitivity, and psychotic-like thinking. Id. Because Plaintiff
reported 14 "moderately extreme" symptoms and 16 "extreme" symptoms, and she
reported that only 6 of 45 items did not apply to her at all, Dr. Kroger opined that
Plaintiff "appears to have utilized a response style that tended to maximize reports
of symptomatology." Id.

Plaintiff also obtained a Total Raw Score of 48 on

the Beck Depression Inventory II and a Total Raw Score of 39 on the Beck
Anxiety Inventory. Based upon these scores, Dr. Kroger opined that Plaintiff
"appears to have utilized a response style that tended to maximize reports of
symptomatology." Id.
He diagnosed Plaintiff with Panic Disorder with Agoraphobia, Pain Disorder
Associated with Both Psychological Factors and a General Medical Condition
(rule out Undifferentiated Somatoform Disorder), Borderline Intellectual
Functioning, and Inadequate & Inferior Personality Traits. (Tr. 292). He opined
that Plaintiffs ability to relate to others (other than to immediate family) and her
ability to tolerate stress and pressure and to accept criticism were "moderately to
markedly impaired." (Tr. 294).
The ALJ properly considered Kroger's opinion and rejected one aspect of
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his opinion that was not supported by his report and inconsistent with the record as
a whole (Tr. 31).
The weight afforded a doctor's opinion on the issue(s) of the nature and
severity of a claimant's impairments depends upon the examining relationship or
treating relationship the doctor may have had with the claimant, the evidence the
doctor presents to support her opinion, how consistent the doctor's opinion is with
the record as a whole, the doctor's specialty, and other factors. See 20 C.F.R. §§
404.1527©, 416.927©.
Dr. Kroger opined that Plaintiffs ability to understand and follow simple
directions was fair to only mildly impaired (Tr. 294). By finding Plaintiff was
limited to simple instructions, the ALl's RFC finding sufficiently addressed that
aspect of Dr. Kroger's opinion (Tr. 29, Finding No.6). The ALl also addressed
Dr. Kroger opinion that Plaintiff s ability to sustain attention and concentration
was overall mildly limited and her ability to relate to others is moderately to
markedly impaired by limiting Plaintiff to simple repetitive tasks where
production quotas are not critical, and limited interpersonal demands in an objectfocused nonpublic work settings (Tr. 29, Finding No.6).

However,

regarding Dr. Kroger's opinion that Plaintiffs ability to tolerate stress and
pressure and accept criticism appears to be moderately to markedly affected, the
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ALJ properly discounted it (Tr. 31, 294). The ALJ specifically stated that he
discounted the portion of Dr. Kroger's opinion regarding the severity of Plaintiffs
ability to tolerate stress and pressure because the opinions were based on
Plaintiff's subjective reports and Plaintiffs exaggerated endorsement of symptoms
as evidenced by the SA-45 and the Beck inventories administered by Dr. Kroger
(Tr. 31). Lending credence to the ALJ's decision is the fact that the only testing
data Dr. Kroger cited to in support of his opinion regarding Plaintiffs ability to
tolerate stress and pressure is showing of "severe" difficulty related to phobic
anxiety on her SA-45 and the Beck Inventories (Tr. 293). However, Dr. Kroger
stated that Plaintiff appears to have responded to the SA-45 "in a manner that
tended to exaggeratively document the presence of symptomology." (Tr. 293). Dr.
Kroger also noted that the results of the Beck Inventories also suggested that
Plaintiff likely utilized an exaggerative response style in her responses, "resulting
in indications of 'severe' affective difficulties in both instruments." (Tr. 293).
Relying upon lack of supporting data and inconsistencies with the record as
a whole, the ALJ properly articulated sufficient reasons for discounting a portion
of Dr. Kroger's opinion. As such, the Court finds no error in this regard.
Plaintiffs second claim of error is that the ALJ did not properly evaluate
Plaintiffs subjective complaints.
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An ALJ "is not required to accept a claimant's subjective complaints and
may properly consider the credibility of a claimant when making a determination
of disability." Jones v. Comm'r a/Soc. Sec., 336 F.3d 469, (6th Cir. 2003)
(citations omitted). The Sixth Circuit has developed a two-prong test to evaluate a
claimant's allegations of disabling pain:
First, we examine whether there is objective medical evidence of an underlying
medical condition. If there is, we then examine: (1) whether objective medical
evidence confirms the severity of the alleged pain arising from the condition; or
(2) whether the objectively established medical condition is of such a severity that
it can reasonably be expected to produce the alleged disabling pain. Walters v.
Comm'r a/Soc. Sec., 127 F.3d 525,528 (6th Cir. 1997) (quoting Felisky v. Bowen,
35 F.3d 1027, 1038-39 (6th Cir.1994)). The ALJ found that Plaintiff's medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, her statements concerning the intensity, persistence and
limiting effects of these symptoms were not credible (Tr. 29). The ALl's decision
shows proper application of the pain standard. The ALJ provided several reasons
for finding Plaintiff's subjective testimony not fully credible. For example, the
ALJ found Plaintiff's allegations of disabling back pain were not supported by the
objective evidence and clinical findings (Tr. 30). Although Plaintiff's MRIs show
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degenerative changes, there is no evidence of central canal, formaminal stenosis,
or nerve impingement (Tr. 30, 445). Further, as the ALJ discussed, Plaintiff only
had conservative treatment for her back and surgery was never recommended (Tr.
30,426).
Likewise, the ALJ found that despite Plaintiff s allegations of disabling left
ankle/foot pain, Dr. Gates' opined Plaintiffs MRI showed only mild changes in
the tendon, and mild plantar fasciitis (Tr. 434). Dr. Gates also found no clinical
evidence of a tear (Tr. 434). Dr. Gates only recommended conservative treatment
(Tr. 441).
With regard to Plaintiffs sleep apnea, Irritable Bowel Syndrome, and
diarrhea, the ALJ acknowledged Plaintiffs complaints, but noted there was no
evidence demonstrating that Plaintiff suffered from any functional limitations
resulting from the alleged impairments. See Higgs v. Bowen, 880 F .2d 860, 863
(6th Cir. 1988) ("The mere diagnosis [of a condition], of course, says nothing
about the severity of the condition."). For example, as discussed by the ALJ,
Plaintiff s sleep apnea was accommodated by a CP AP machine (Tr. 405). Plaintiff
reported only mild insomnia without any daytime symptoms after using the CPAP
(Tr. 405). Plaintiff argues the CPAP was not effective because Plaintiff had
trouble with the face mask. Pl.'s Br. at 17. However, Dr. Brijiwal's records show
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that Plaintiff changed her face mask and was doing well with her CP AP (Tr. 405).
As properly noted by the ALJ, if Plaintiff was continuing to have problems with
her mask or sleep apnea, Plaintiff could have sought further treatment from Dr.
Brijiwal. Dr. Brijiwal's recommendation that Plaintiff see him in one year only
further bolsters the ALJ's finding that Plaintiff was not having trouble with her
CPAP as of her last visit with Dr. Brijiwal (Tr. 28).
Contrary to Plaintiffs contention, the ALJ clearly considered Plaintiffs
records from Northkey Community Care. The ALJ refers to Plaintiffs Northkey
treatment when he notes that Plaintiff has continued to see a therapist related to
her depression and panic disorder (Tr. 26) and in partially discounting the State
agency physician's opinions (Tr. 31). Further, it is clear from the RFC that the
ALJ accounted for Plaintiffs mental limitations, including those supported by her
Northkey records (Tr. 29, Finding No.6). Plaintiffs Northkey records do not
contain any opinions or medical evidence contrary to the ALJ's RFC finding that
Plaintiffs mental impairments limited her to simple instructions, simple repetitive
tasks where production quotas were not critical, routine changes in a simple work
setting, and needed a work environment with limited interpersonal demands in an
object-focused nonpublic work setting (Tr. 29, Finding No.6).
In deeming Plaintiffs subjective complaint less than credible, the ALJ
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provided a thorough rationale for his credibility findings that comported with the
regulations and caselaw. As such, the Court finds no error in this regard.
Finally, Plaintiff maintains that the ALJ improperly relied upon the
testimony of the VE.
The ALJ found Plaintiff could not perform her past relevant work (Tr.
31, Finding No.7). See 20 C.F.R. §§ 404. 1520(a)(4)(iv); 416.920(a)(4)(iv). The
ALJ, therefore, had to determine if Plaintiff could perform other work. See 20
C.F.R. §§ 404.1520(a)( 4)(v); 416.920(a)( 4)(v). The ALJ utilized the framework of
the Medical-Vocational Guidelines and the testimony of the VE to determine that
a significant number of jobs existed in the national economy that Plaintiff could
perform (Tr. 31-32). In response to a hypothetical question that included the ALJ's
assessment of Plaintiffs RFC, the VE identified examples of jobs Plaintiff could
perform give her limitations (Tr. 32, 522-23).
In attempting to establish error, Plaintiff offers a cursory argument that she
would have more than two absences per month due to doctor's appointments and
could, therefore, not be able to sustain full-time work. [Docket No. 15, PI. 's Br. at
p.16]. Without more, the Court is hard pressed to find that the ALl's decision was
not supported by substantial evidence. Plaintiff has not established that she had
additional limitations in her ability to work. The ALJ, therefore, properly relied on
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the VE's testimony to find that Plaintiff could perform other work.

III. CONCLUSION
The Court finds that the ALl's decision is supported by substantial evidence
on the record. Accordingly, it is HEREBY ORDERED that the Plaintiffs
Motion for Summary Judgment be OVERRULED and the Defendant's Motion
for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant
will be entered contemporaneously herewith.
This 24th day of March, 2014.

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