McGaha v. SSA
Filing
15
MEMORANDUM OPINION & ORDER: 1) Plaintiff's Motion for Summary Judgment 12 is DENIED; 2) Defendant's Motion for Summary Judgment 13 is GRANTED. Signed by Judge Joseph M. Hood on 6/20/2014.(TJZ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
MICHAEL MCGAHA,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Docket No.
2:13-CV-0123-JMH
MEMORANDUM OPINION &
ORDER
Defendant.
***
This
matter
is
before
the
Court
upon
cross-motions
for
summary judgment [DE 12 and 13] on Plaintiff’s appeal of the
Commissioner’s
denial
of
his
application
for
disability
insurance benefits (DIB) and supplemental security income (SSI).
Plaintiff has also filed a Reply [DE 14] in further support of
his appeal.1 The Court, having reviewed the record in this case
and the motions filed by the parties, finds that the decision of
the
Administrative
Law
Judge
is
supported
by
substantial
evidence, and, thus, the Court will grant Defendant’s motion and
deny Plaintiff’s motion.
I.
Plaintiff filed his application for DIB and SSI in May
2010.
[Administrative
Record
(“AR”)
at
187-194].
Having
been
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.
denied by the Commissioner, Plaintiff requested a hearing. An
Administrative Law Judge (ALJ) held a hearing on December 2,
2011. [AR at 45-87]. Pursuant to 20 C.F.R. §§ 404.1520, 416.920,
the ALJ is responsible for conducting a five-step analysis to
determine disability: (1) claimant must prove that he is not
engaged
in
disability
suffers
any
“substantial
benefits;
from
a
(2)
gainful
claimant
“severe
activity”
must
impairment,”
when
he
demonstrate
meaning
seeks
that
“one
he
which
significantly limits...physical or mental ability to do basic
work”;
(3)
if
the
claimant
is
not
working,
has
a
severe
impairment “that is expected to last at least twelve months,”
and
the
“impairment
meets
a
listed
impairment,”
then
the
claimant is presumed disabled; (4) if claimant’s impairment does
not prevent him from performing his past work, then he is not
disabled; and (5) even if claimant’s impairment prevents him
from performing his past work, if “other work exists in the
national economy” that the claimant can do, then the claimant is
not disabled. Peterson v. Comm’r of Soc. Sec., 552, F. App’x
533,
538
(6th
Cir.
2014)(citing
20
C.F.R.
§416.920
(2012));
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.
2001)(citing 20 C.F.R. § 404.1520 (2012)). The burden of proof
“lies with the claimant to prove [he] is disabled” in the first
four
steps.
Foster
v.
Halter,
279
F.3d
2001)(citing 20 C.F.R. § 404.1520 (2012);
2
348,
353
(6th
Cir.
Casey v. Sec’y of
Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)).
However, at the fifth step the burden of proof shifts to the
Commissioner to “establish the claimant’s ability to do work.”
Foster v. Halter, 279 F.3d at 354 (citing Tyra v. Sec’y of
Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)).
On December 16, 2011, the ALJ issued a decision that was
unfavorable to Plaintiff [AR at 27-44]. Appeals Council denied
Plaintiff’s
request
for
review.
Therefore,
the
Plaintiff’s
appeal is now eligible for review by this Court pursuant to 42
U.S.C. § 405(g).
At the time of the hearing, Plaintiff was 35 years old, had
a 9th grade education, and had previously worked as a shelfstocker, water damage technician, and dishwasher, among other
things. [AR at 52-54, 195-199, 208]. Plaintiff alleged that he
became
disabled
on
February
11,
2010,
due
to
depression,
anxiety, and back and neck pain. [AR at 187-194, 209-215, 285296, 382-390]. Following the hearing, the ALJ determined that
Plaintiff is capable of performing light work, and, thus, is not
disabled
under
Specifically,
the
Social
considering
Security
Plaintiff’s
Act.
[AR
“age,
at
27-40].
education,
work
experience, and residual functional capacity,” the ALJ concluded
that
there
are
a
number
of
jobs
that
“exist
in
significant
numbers in the national economy” that Plaintiff can perform. [AR
at 38].
3
II.
Pursuant to 42 U.S.C. § 405(g), this Court reviews this
administrative decision to determine “whether the Commissioner’s
decision
is
supported
by
substantial
evidence
and
was
made
pursuant to proper legal standards.” Louden v. Comm’r of Soc.
Sec., 507 F. App’x 497, 498 (6th Cir. 2012)(internal quotation
marks
and
citation
omitted).
“Substantial
evidence”
is
“such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Brooks v. Comm’r of Soc. Sec., 531 F.
App’x 636, 641 (6th Cir. 2013) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)) (internal quotation marks omitted). In
other words, as long as an administrative decision is supported
by “substantial evidence,” this Court must affirm, regardless of
whether there is evidence in the record to “support a different
conclusion.” Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 60405 (6th Cir. 2009) (citing Felisky v. Bowen, 35 F.3d 1027, 1035
(6th
Cir.
1994))
(“administrative
(internal
findings
are
not
quotation
subject
marks
to
omitted)
reversal
merely
because substantial evidence exists in the record to support a
different conclusion”).
III.
Plaintiff argues that the ALJ made two errors: (1) “[t]he
ALJ gave insufficient weight to consultative examiner Dr. Ellen
Yass-Reed’s opinion,” and (2) “[t]he ALJ improperly found that
4
Plaintiff’s
inability
to
afford
mental
health
treatment
indicated his impairments were not very limiting.” [Pl.’s Mot.
at 7,9].
With respect to Plaintiff’s first argument, generally, the
opinion of an examining physician is given more weight than the
opinion of a non-examining physician. However, an ALJ may give
the opinion of a non-examining physician greater weight than the
opinion
of
an
examining
physician
“when
the
non-examining
physician clearly states the reasons that his opinions differ
from those of the examining physicians.”
Lyons v. Soc. Sec.
Admin., 19 F. App’x 294, 302 (6th Cir. 2001) (citing Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994)); see also Dragon v.
Comm’r of Soc. Sec., 470 F. App’x 454, 463-64 (6th Cir. 2012)
(citing
20
C.F.R.
§
404.1527(d)(3)).
One
such
factor
in
evaluating medical opinions is “whether an opinion is consistent
with the record as a whole or supported by relevant evidence.”
Dragon v. Comm’r of Soc. Sec., 470 F. App’x at 463-64 (citing 20
C.F.R. § 404.1527(d)(3)-(4)).
Here,
given
by
the
the
Global
Assessment
examining
of
physician,
Functioning
Dr.
(GAF)
Yass-Reed,
score
indicates
serious impairment in functioning; however, according to the ALJ
and
non-examining
physician,
Dr.
Lea
Perritt,
this
score
is
inconsistent with Dr. Yass-Reed’s own evaluation, which noted
that Plaintiff’s “judgment and memory were intact,” and that
5
Plaintiff is capable of performing everyday activities, such as
handling finances and grocery shopping, by himself. [AR at 37].
The State Agency Mental Residual Functional Capacity (RFC) and
Psychiatric
reviewer,
Review
Dr.
Technique
Perritt,
prepared
indicated
that
by
the
non-examining
Plaintiff
has
moderate
mental limitations but is still capable of performing some daily
activities,
such
as
understanding
and
remembering
simple
instructions. [AR at 37-38, 395-415]. The ALJ explains that the
opinion of Dr. Perritt was given more weight because, unlike the
opinion of Dr. Yass-Reed, the conclusion drawn in the state
agency
evaluation
prepared
by
Dr.
Perritt
was
“generally
consistent with the medical record [including Dr. Yass-Reed’s
observations]
Commissioner,
as
a
whole.”
because
he
[AR
at
38].
cited
Further,
what
she
argues
viewed
the
as
inconsistencies contained within Dr. Yass-Reed’s opinion, Dr.
Perritt provided a clear and thorough explanation for why her
opinion differed from that of Dr. Yass-Reed’s opinion. [AR at
37-38].
Plaintiff argues that the ALJ did nothing more than repeat
what
the
non-examining
reviewer
said
and,
thus,
ignored
Dr.
Yass-Reed’s additional specific conclusions that Plaintiff is
vulnerable
to
intrusion
of
information
and
has
difficulty
manipulating information and working memory; that his sustained
concentration is moderately-to-severely impaired; and that his
6
ability to be reliable and consistent in a work-like setting was
severely impaired.
considered
normal
Plaintiff ignores the fact that the ALJ also
treatment
mood
and
consciousness;
notes
affect,
records
from
other
speech
providers
pattern,
concerning
concerning
orientation,
control
of
and
Plaintiff’s
anxiety; and observations concerning Plaintiff’s behaviors and
statements
concerning
maintaining
personal
relationships,
personal hygiene, care of his home and self, and his family
gleaned from the record and from Plaintiff’s testimony. [AR at
36-37].
This is more than parroting a bare-bones opinion of a
non-examining consultative examiner.
may
be
evidence
which
would
As a result, while there
support
Plaintiff’s
preferred
conclusion, there is equally evidence of record to support the
conclusion
reached
by
the
ALJ
in
giving
less
weight
to
opinion of Dr. Yass-Reed and more to that of Dr. Perritt.
the
Thus,
the ALJ was justified in giving more weight to the non-examining
physician than the examining physician in this case.
Next,
Plaintiff
relies
on
the
Sixth
Circuit
case
of
McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990), to argue
that the ALJ improperly penalized Plaintiff for “fail[ure] to
seek
treatment
he
cannot
afford.”
[Pl.’s
Mot.
at
9-11].
Plaintiff specifically points to the ALJ’s finding that “medical
evidence establishes a history of major depressive disorder and
generalized anxiety disorder, yet the claimant has not undergone
7
mental
health
treatment,
which
suggests
that
his
mental
impairment are not as limiting as alleged.” [AR at 37].
However, there are several reasons why there is substantial
evidence
supporting
Sullivan,
provides
the
that
ALJ’s
the
finding.
Secretary
First,
must
McKnight
first
v.
determine
whether Plaintiff has a disability in the absence of treatment;
if such a disability is found, then the Secretary must determine
whether affordable treatment is available that would prevent the
disability from qualifying as a “severe impairment,” thus making
Plaintiff eligible for DIB and SSI. McKnight v. Sullivan, 927
F.2d
at
242.
Therefore,
“the
issue
of
poverty
as
legal
justification for failure to obtain treatment does not arise
unless a claimant is found to be under a disabling condition.”
Strong v. Soc. Sec. Admin., 88 F. App’x 841, 846 (6th Cir. 2004)
(citing McKnight v. Sullivan, 927 F.2d at 242).
Here,
Plaintiff,
in
the
paragraph
the
ALJ
goes
on
following
to
explain
the
excerpt
that
medical
cited
by
records
“indicate normal mood and affect, speech pattern, orientation
and consciousness” at a time when Plaintiff was not receiving
treatment.
[AR
at
37].
Therefore,
the
ALJ
has
provided
substantial evidence that a disability does not exist, even in
the absence of treatment.
Even assuming, arguendo, that the ALJ relied on Plaintiff’s
failure to seek mental health treatment in making her decision,
8
there is still substantial evidence supporting the decision of
the
ALJ.
In
Strong
v.
Soc.
Sec.
Admin.,
the
Sixth
Circuit
provided an overview of factors to consider when a Claimant is
alleging
a
mental
health
disability
but
has
failed
to
seek
treatment because of poverty claims. Strong v. Soc. Sec. Admin.,
88 F. App’x at 846. In that case the Sixth Circuit held that,
assuming “there is no evidence suggesting that Claimant’s mental
condition hindered him from seeking examination or treatment,” a
claimant’s failure to seek treatment may be considered to “cast
doubt on a claimant’s assertions of disabling pain.” Id. See
Williams v. Bowen, 790 F.2d 713, 715 (8th Cir.1986); see also
Kimbrough v. Sec'y of Health & Human Servs., 801 F.2d 794, 797
(6th Cir. 1986). However, failure to seek treatment “should not
be a determinative factor” in assessing the credibility of the
claimant. Strong v. Soc. Sec. Admin., 88 F. App’x at 846 (6th
Cir. 2004) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124
(6th Cir. 1989)).
In
health
this
case,
hindered
Plaintiff
his
ability
has
to
not
seek
suggested
treatment.
that
In
mental
addition,
while the ALJ cites a lack of consistent health treatment in
making
a
credibility
assessment,
this
factor
was
not
“determinative.” [AR at 37]. Immediately following her mention
of failure to seek consistent treatment, the ALJ writes, “In
addition,
psychiatric
evaluation...indicate
9
normal
mood
and
affect,...which
further
call
the
claimant’s
credibility
into
question.” [AR at 37]. This statement indicates that the ALJ was
considering Plaintiff’s failure to seek consistent treatment as
one factor among many that calls Plaintiff’s credibility into
question, which is in line with the analysis provided in Sixth
Circuit precedent. The ALJ goes on to cite “other factors [that]
further belie the claimant’s credibility,” including ability to
perform daily activities, such as caring for a dog and grocery
shopping,
despite
Therefore,
the
ALJ
alleging
provided
debilitating
substantial
pain
[AR
evidence
for
at
37].
denying
Plaintiff’s DIB and SSI claim.
Accordingly, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [DE 12]
is DENIED and
(2)
that Defendant’s Motion for Summary Judgment [DE 13]
is GRANTED.
This the 20th day of June, 2014.
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