Lockard v. SSA
Filing
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MEMORANDUM OPINION & ORDER: It is ordered 1) Decision of Commissioner is supported by substantial evidence and is hereby AFFIRMED; 2) Plaintiff's 10 MOTION for Summary Judgment is DENIED; 3) Defendant's 11 MOTION for Summary Judgment is GRANTED; 4) Judgment affirming this matter will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 3/24/2016.(TED)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 14-197-DLB
REGINA G. LOCKARD
vs.
PLAINTIFF
MEMORANDUM OPINION & ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
DEFENDANT
*** *** *** ***
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record and the parties’ dispositive motions, will affirm the Commissioner’s
decision, as it supported by substantial evidence.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Regina Lockard applied for disability insurance benefits (DIB) and
supplemental social security benefits (SSI) on September 14, 2011, alleging disability
beginning on December 31, 2009. (Tr. 72). Plaintiff was forty-eight (48) years old at the
time of filing. (Tr. 72). Specifically, Plaintiff alleges that she is unable to work due to
permanent damage to a nerve in her lower back and leg, bipolar disorder, manicdepressive disorder, paranoid tendencies, torn rotator cuff, and back surgery. (Tr. 236).
Plaintiff’s application was denied initially and again on reconsideration. (Tr. 72-101;
104-135). At Plaintiff’s request, an administrative hearing was conducted on May 6, 2013
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before Administrative Law Judge (ALJ) Ena Weathers. (Tr. 38-71). On June 28, 2013, ALJ
Weathers ruled that Plaintiff was not entitled to DIB or SSI benefits (Tr. 16-37). This
decision became the final decision of the Commissioner when the Appeals Council denied
Plaintiff’s request for review on October 28, 2014. (Tr. 2-4).
Plaintiff filed the instant action on November 21, 2014. (Doc. # 1). The matter has
culminated in cross-motions for summary judgment, which are now ripe for adjudication.
(Docs. # 10, 11).
II. DISCUSSION
A.
Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial evidence” is
defined as “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 a
conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make
credibility determinations. Id. Rather, we are to affirm the Commissioner’s decision, as
long as it is supported by substantial evidence, even if we might have decided the case
differently. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). If supported
by substantial evidence, the Commissioner’s findings must be affirmed, even if there is
evidence favoring Plaintiff’s side. Listenbee v. Sec’y of Health & Human Servs., 846 F.2d
345, 349 (6th Cir. 1988). Similarly, an administrative decision is not subject to reversal
merely because substantial evidence would have supported the opposite conclusion.
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Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).
To determine disability, the ALJ conducts a five-step analysis. Step One considers
whether the claimant can still perform substantial gainful activity; Step Two, whether any
of the claimant’s impairments, alone or in combination, are “severe”; Step Three, whether
the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether
the claimant can still perform her past relevant work; and Step Five, whether a significant
number of other jobs exist in the national economy that the claimant can perform. As to the
last step, the burden of proof shifts from the claimant to the Commissioner to identify “jobs
in the economy that accommodate [Plaintiff’s] residual functional capacity.” See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); see also Preslar v. Sec’y of Health
& Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
B.
The ALJ’s Determination
At Step One, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since December 31, 2009, the alleged onset date. (Tr. 18). At Step Two, the ALJ
determined that Plaintiff has the following severe impairments: major depression with
psychosis, personality disorder, borderline intellectual functioning, and tobacco-abuse
disorder resulting in chronic-obstructive pulmonary disease. (Tr. 19). At Step Three, the
ALJ concluded that Plaintiff did not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. § 404, Subpart P,
Appendix 1. (Tr. 21).
At Step Four, the ALJ found that Plaintiff possessed the residual functional capacity
(RFC) to perform light work, as defined in 20 C.F.R. § 404.1567(b), with the following
limitations:
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“She cannot climb ladders, ropes or scaffolds. She can occasionally stoop,
kneel, crouch or crawl. She can perform simple, routine, non-tandem tasks
without strict production demands. She can have occasional interaction with
supervisors and occasional to superficial interaction with co-workers and the
general public. She can occasionally push and pull with right lower extremity.
She can perform no overhead reaching with the right upper extremity. She
must avoid all concentrated exposure to extreme heat and cold, fumes,
odors, gases, and environmental irritants. She must have the ability to
change from standing to a seated position on occasion for one to two
minutes at the workstation without interference with work product.”
(Tr. 24). Based upon this RFC, the ALJ concluded that Plaintiff was able to perform her
past relevant work as a housekeeper and country club cleaner. (Tr. 19).
The ALJ also alternatively held that Plaintiff was incapable of performing her past
relevant work, but nevertheless, based on the testimony of a vocational expert (VE) and
Plaintiff’s characteristics, found that there were a significant number of jobs in the region
which Plaintiff could perform. (Tr. 31-32). Accordingly, the ALJ proceeded to the final
step of the sequential evaluation. At Step Five, the ALJ found that Plaintiff was forty-six
(46) years old on the alleged disability onset date, which is defined as a younger individual.
(Tr. 31); see also 20 C.F.R. § 404.1563(c). The ALJ also found that Plaintiff has a limited
education and is able to communicate in English. (Tr. 31). Relying on the testimony of a
VE and considering Plaintiff’s age, education, work experience, and RFC, the ALJ
concluded that there are a significant number of jobs in the national economy that Plaintiff
could perform. (Tr. 31-32). Therefore, the ALJ concluded that Plaintiff was not under a
disability, as defined in the Social Security Act, from the alleged onset date through the
date of her decision. (Tr. 31-32).
C.
Analysis
Plaintiff argues that the ALJ committed four errors. First, she argues that the ALJ
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erred by failing to explain how she arrived at Plaintiff’s RFC determination for her mental
and nervous impairments, and by giving incorrect weight to certain medical sources.
Second, that the ALJ erred by not finding Plaintiff’s lower back and leg impairments to be
severe. Third, that the ALJ erred in assessing the pain, subjective complaints, and
credibility of Plaintiff, and also erred in failing to note that Plaintiff lacked medical insurance.
Fourth and finally, Plaintiff alleges that the ALJ erred by relying on improper hypothetical
questions presented to the VE. Each argument will be addressed in turn.
1.
The ALJ adequately explained how she reached her RFC determination,
and properly explained why she discounted certain medical opinions.
Plaintiff argues that the ALJ erred by failing to adequately explain both the RFC
determination and why certain medical opinions were discounted. However, both of the
ALJ’s decisions were supported by substantial evidence and will not be disturbed.
Plaintiff argues that the ALJ erred by failing to find her disabled since substantial
evidence supports her disability. Of course, it does not matter if the substantial evidence
does support her disability, so long as it also supports her not being disabled. Her, 203
F.3d at 389-90 (holding that “[e]ven if the evidence could also support another conclusion,
the decision of the Administrative Law Judge must stand if the evidence could reasonably
support the decision reached”) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997));
see also Listenbee, 846 F.2d at 349. As a result, it does not matter if Plaintiff, or even this
Court, believes substantial evidence supports a different disability determination. All that
is required of the ALJ is that her decision be supported by substantial evidence. The ALJ
has done so here.
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At Step Four of the analysis, the ALJ carefully reviewed the record and found that
Plaintiff was capable of doing light work with the limitations specified. (Tr. 24). The ALJ
carefully went through each of Plaintiff’s impairments and described why they were not
disabling. (Tr. 24-30). She noted the lack of objective medical evidence, and properly
discounted subjective symptoms as lacking credibility. Moreover, the ALJ properly focused
on Plaintiff’s reports of daily activities, which included personal care, caring for her
grandson, preparing daily meals, shopping, and other daily household chores. Accordingly,
the substantial evidence here supports the ALJ’s determination that Plaintiff was not
disabled.
The ALJ also properly discounted the opinion evidence of Drs. Hoblitzell, Van Meter,
and Smith. Ordinarily, a treating physician’s opinion is given controlling weight if it is wellsupported and not contradicted by other evidence. 20 C.F.R. § 404.1527(c)(2). But, the
ALJ is not bound by a treating physician’s opinion that is inconsistent with the substantial
evidence in a case. See 20 C.F.R. § 404.1527(c)(2)-(6); see also Cutlip, 25 F.3d at 287
(holding that the Commissioner “is not bound by treating physicians’ opinions, especially
when there is substantial medical evidence to the contrary”); accord Cohen v. Sec’y of
Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (holding that the ALJ is not
bound by “conclusory statements of doctors, especially where they are unsupported by
detailed objective criteria and documentation”); Young v. Sec’y of Health & Human Servs.,
925 F.2d 146, 151 (6th Cir. 1990). To discount a treating physician’s opinion, the ALJ must
give “good reasons” for doing so. See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 380
(6th Cir. 2013) (holding that the Commissioner must provide “good reasons” when it gives
little weight to a treating physician’s opinion) (citing Cole v. Astrue, 661 F.3d 931, 939 (6th
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Cir. 2011).
The ALJ provided good reasons each time she discounted opinion evidence. Dr.
Hoblitzell’s opinion was properly discounted because it was rendered some ten (10) years
prior to Plaintiff’s disability application, and thus, provided little insight about Plaintiff’s
current health. (Tr. 29). Dr. Van Meter’s opinion was properly discounted because the ALJ
found it to be internally inconsistent and inconsistent with the record as a whole. (Tr. 29).
The ALJ also adequately explained why she only gave “some weight” to the opinion
of Dr. Smith. Dr. Smith found that Plaintiff had depression, personality disorder, and
borderline intellectual functioning.
Dr. Smith also found Plaintiff to have a Global
Assessment of Function score of 25. (Tr. 29-30, 528); see also AM. PSYCHIATRIC ASS’N,
DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 34 (4th ed. 1994). However, Dr.
Smith cites no diagnostic testing to support the findings of depression, personality, disorder,
and borderline intellectual functioning.
Moreover, the GAF score of 25 – which is
remarkably low for someone who can perform the daily tasks that Plaintiff testified she
performs – appears to be an aberration from the record as a whole.1 Accordingly, the ALJ
properly afforded only some weight to Dr. Smith’s opinion. (Tr. 30).
2.
The ALJ did not err determining which of Plaintiff’s impairments were
severe.
The second step in the disability evaluation process requires the ALJ to consider the
1) A GAF score of 25 indicates an individual whose behavior is “considerably influenced by
delusions or hallucinations”or who has an “inability to function in almost all areas.” AM. PSYCHIATRIC
ASS’N, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 34 (4th ed. 1994). Such a person
may have suicidal preoccupation or stay in bed all day with no home or friends. Id. As the ALJ
noted, the record in no way supports a score this low, and the finding also was made during an
exacerbation of Plaintiff’s symptoms, further limiting its value to the disability determination. (Tr. 30,
520).
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medical severity of the claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii); Soc. Sec.
Ruling 96-3P, 1996 WL 374181, at *1 (July 2, 1996). An impairment is considered severe
if it “significantly limits an individual’s physical or mental ability to perform basic work
activities.” 20 C.F.R. § 404.1521(b). Basic work activities, defined as those “abilities and
aptitudes necessary to do most jobs,” include the following: (1) physical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2)
capacities for hearing, seeing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a
routine work setting. Id. The claimant’s impairments must have lasted or be expected to
last for a continuous twelve (12) month period, unless the condition is expected to result
in death. 20 C.F.R. § 404.1520(c); 20 C.F.R. § 404.1509.
Because the Sixth Circuit has interpreted “the step two severity regulation as a ‘de
minimis hurdle’ in the disability determination process,” meant to screen out totally frivolous
claims, the severity of the impairment is “liberally construed in favor of the claimant” at this
step in the analysis. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (citations omitted);
Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985); Griffeth v.
Comm’r of Soc. Sec., 217 F. App’x. 425, 428 (6th Cir. 2007). “[A]n impairment can be
considered not severe only if it is a slight abnormality that minimally affects work ability
regardless of age, education and experience.” Higgs, 880 F.2d at 862 (citing Farris, 773
F.2d at 90).
If the ALJ finds that at least one of the claimant’s alleged impairments is severe in
nature, the claim survives the Step-Two screening process. 20 C.F.R. § 404.1520(a)(4).
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Because the Regulations instruct the ALJ to consider both severe and non-severe
impairments in the remaining steps of the disability determination analysis, any impairment
erroneously labeled as “non-severe” will not be ignored altogether.
20 C.F.R. §
404.1545(a)(2). For this reason, courts have consistently held that an ALJ does not commit
reversible error when he or she decides that some of claimant’s impairments are not
severe, but finds that other impairments are severe and proceeds with the analysis.
Maziarz v. Sec’y Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (“Since the
Secretary properly could consider claimant’s cervical condition in determining whether
claimant retained sufficient residual functional capacity to allow him to perform substantial
gainful activity, the Secretary’s failure to find that claimant’s cervical condition constituted
a severe impairment could not constitute reversible error.”); McGlothin v. Comm’r, 299 F.
App’x. 516, 522 (6th Cir. 2008) (finding it “legally irrelevant” that the ALJ determined that
some of claimant’s impairments were severe and some were not because “once any one
impairment is found to be severe, the ALJ must consider both severe and non-severe
impairments in the subsequent steps”).
At Step Two, the ALJ concluded that Plaintiff suffered from the following severe
impairments: (1) major depression with psychosis; (2) personality disorder; (3) borderline
intellectual functioning; and (4) tobacco-abuse disorder resulting in COPD. (Tr. 19).
Having found that Plaintiff suffered from multiple severe impairments, the ALJ proceeded
with the disability determination analysis.
Assuming arguendo that Plaintiff’s other impairments should have been considered
severe, the error was harmless because the ALJ found that Plaintiff had other severe
impairments and completed the disability determination analysis. In accordance with the
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Regulations, the ALJ considered both severe and non-severe impairments, including
evidence of the above-mentioned non-severe impairments, at subsequent steps in the
analysis. (Tr. 19-30). Therefore, the ALJ committed no reversible error. See Maziarz, 837
F.2d at 244.
3.
The ALJ assessed Plaintiff’s subjective symptoms and properly
assessed her credibility relating thereto.
The Sixth Circuit has recognized that the cause of a disability may not be the
underlying condition itself, “but rather the symptoms associated with the condition.” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). In such situations, the ALJ
must perform a two-step analysis to evaluate complaints of disabling pain. Kalmbach v.
Comm’r of Soc. Sec., 409 F. App’x. 852, 862 (6th Cir. 2011) (citing 20 C.F.R. § 416.929(a);
Rogers, 486 F.3d at 247). First, the ALJ must determine “whether there is an underlying
medically determinable physical impairment that could reasonably be expected to produce
the alleged symptoms.” Id. at 862-63. If the ALJ finds that such impairment exists, the ALJ
must then consider the intensity, persistence, and limiting effects of the symptoms on the
claimant’s ability to perform basic work activities. Id. at 863. When evaluating the
claimant’s symptoms, the ALJ should consider the claimant’s daily activities; the location,
duration, frequency, and intensity of symptoms; factors that precipitate and aggravate
symptoms; the type, dosage, effectiveness, and side effects of any medication taken to
alleviate the symptoms; other treatment undertaken to relive symptoms; other measures
taken to relieve symptoms; and any other factors bearing on the limitations of the claimant
to perform basic functions. Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *2-3 (July 2, 1996).
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When the claimant’s complaints regarding the intensity and persistence of his or her
symptoms are unsupported by objective medical evidence, the ALJ must make a credibility
determination “based on a consideration of the entire case record,” including lab findings,
information from treating physicians, Plaintiff’s complaints of symptoms and other relevant
evidence. Rogers, 486 F.3d at 247 (quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *4).
After making a credibility determination, the ALJ must explain that decision with enough
specificity “to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for the weight.” 20 C.F.R.
§ 404.1529; Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *2. “Blanket assertions that the
claimant is not believable will not pass muster, nor will explanation as to the credibility
which are not consistent with the entire record and the weight of the relevant evidence.”
Rogers, 486 F.3d at 248. Once the ALJ has made the credibility determination, the
reviewing court must give great weight and deference to that conclusion. Id.
As noted in the prior section of the Court’s analysis, the ALJ found that Plaintiff
manages many activities associated with daily living, such as personal grooming, caring
for her grandson, shopping, preparing meals, and completing other household chores and
errands. (Tr. 28). The ALJ determined that the ability to perform these daily activities did
not comport with Plaintiff’s allegations. (Tr. 28). Therefore, the ALJ concluded that
Plaintiff’s statements regarding the intensity, frequency, and limiting effects of her
symptoms were not entirely credible.
To the extent that Plaintiff complains of the ALJ’s alleged failure to consider her lack
of medical insurance, she is mistaken. Plaintiff overlooks the fact that the ALJ did consider
her lack of insurance coverage, among a host of other factors, in making her credibility
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determination. Failure to seek proper treatment is an appropriate consideration for the ALJ
in making her credibility determination, as is whether Plaintiff’s ability to pay influenced
such failure. See 20 C.F.R. § 404.1529(c)(v); see also Soc. Sec. Ruling 96-7p,1996 WL
374186. Here, the ALJ considered the Plaintiff’s lack of medical insurance, but determined
that her failure to seek treatment was based on more than an inability to pay because of
a lack of medical coverage. (Tr. 27-28). Having reviewed the ALJ’s credibility assessment,
which carefully detailed the inconsistencies between Plaintiff’s daily activities, subjective
complaints of pain, and the objective medical evidence, the Court finds no error.
4.
The ALJ did not err in her hypothetical questions to the VE.
First, it should be noted that the Court finds no error in the ALJ’s assessment that
Plaintiff is capable of performing past relevant work. Ordinarily, such a finding ends the
ALJ’s analysis. Here, however, the ALJ held in the alternative that there were a sufficient
number of jobs in the regional and national economy that Plaintiff could perform
notwithstanding her impairments. Out of an abundance of caution, the Court will review the
ALJ’s determination and method for reaching that conclusion.
Plaintiff alleges, specifically, that the ALJ erred in posing hypothetical questions to
the VE. In posing a hypothetical question to a VE, an ALJ must accurately describe
Plaintiff’s functional limitations. Varley v. Sec’y of Health and Human Servs., 820 F.2d 777,
779 (6th Cir. 1987). However, the ALJ need only incorporate those limitations she finds to
be credible. Casey, 987 F.2d at 1235.
Here, the ALJ properly excluded certain limitations that she found unsupported –
namely, those limitations suggested by Dr. Smith, which, as the Court explained above,
were not supported by the evidence in this case. Moreover, the ALJ properly included
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those limitations that she did find credible, and committed no error in posing hypothetical
questions to the VE. (Tr. 31-32).
III. CONCLUSION
For the reasons stated herein, the Court concludes that the ALJ’s finding that
Plaintiff was not disabled for purposes of the Social Security Act was supported by
substantial evidence. Accordingly, for the reasons stated,
IT IS ORDERED as follows:
1.
The decision of the Commissioner is supported by substantial evidence and
is hereby AFFIRMED;
2.
Plaintiff’s Motion for Summary Judgment (Doc. # 10) is hereby DENIED;
3.
Defendant’s Motion for Summary Judgment (Doc. # 11) is hereby GRANTED;
4.
A Judgment affirming this matter will be entered contemporaneously herewith.
This 24th day of March, 2016.
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