Free v. SSA

Filing 16

MEMORANDUM OPINION & ORDER: 1) That the Plf's Motion for Summary Judgment 12 be OVERRULED and the Def's Motion for Summary Judgment 13 be SUSTAINED. A judgment in favor of the Def will be entered concurrently herewith. Signed by Judge Henry R. Wilhoit, Jr on 9/15/2016.(ECO)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
at COVINGTON
Civil Action No. 15-49-HRW
PLAINTIFF,

ROBERT FREE,

v.

MEMORANDUM OPINION AND ORDER

CAROLYN COLVIN,
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 Plaintiffs application for disability insurance benefits. The
Comt having reviewed the record in this case and the dis positive motions filed by the patties, 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 his current application for disability insurance benefits on December 30,
2011, alleging disability beginning on July 31, 2003, due to heart problems, high blood pressure,
gout and prostrate problems (Tr. 161). This application was denied initially and on
reconsideration. Thereafter, upon request by Plaintiff, an administrative hearing was conducted
by Administrative Law Judge Roger Reynolds (hereinafter "ALJ"), wherein Plaintiff,
accompanied by counsel, testified. At the hearing, Ralph Crystal, a vocational expert (hereinafter
"VE"), also testified.
At the hearing, pursuant to 20 C.F.R. § 416.920, the ALJ performed the following fivestep 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.

The ALJ issued a decision finding that Plaintiff was not disabled (Tr. 21-27). Plaintiff
was 53 years old on the date of the alleged onset of disability. He has a 7•h grade education and
has worked as a construction laborer (Tr. 161-162).
At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of disability (Tr. 23).
The ALJ then determined, at Step 2, that Plaintiff suffers from coronaty aiiery disease,
status-post percutaneous transluminal coronary angioplatsy with stents to the right coronaty
artery and the left anterior descending artery, bilateral degenerative joint disease of the knees
status-post arthroscopic surge1y, warm antibody hemolytic anemia in remission and hypertenson,
which he found to be "severe" within the meaning of the Regulations (Tr. 24 ).

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At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
of the listed impairments (Tr. 24).
The ALJ then held that Plaintiff had the residual functional capacity ("RFC") to perform
medium work, except he could not climb ropes, ladders or scaffolds; could not more than
occasionally climb stairs and ramps; could occasionally stoop, kneel, crouch and crawl; could not
operate foot pedal controls; could not work with his hands over his head; and could not be
exposed to concentrated dust, gases, smoke, fumes, temperature extremes or excess humidity.
(Tr. 24). The ALJ next held Plaintiff was unable to perform any of his past relevant work, but
that there were other jobs in the national economy which Plaintiff could perform, and thus denied
the claim. (Tr. 25-27).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential
evaluation process.
The Appeals Council denied Plaintiffs request for review and adopted the ALJ'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 Summmy
Judgment [Docket Nos. 12, 13 and 15] and this matter is ripe for decision.

II. ANALYSIS
A.

Standard of Review

The essential issue on appeal to this Court is whether the ALJ' s decision is 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

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v. Heckler, 745 F.2d 383, 387 (6'h Cir. 1984). If the Commissioner's decision is suppo1ied by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretmy ofHealth and Human

Services, 667 F.2d 524, 535 (6'h Cir. 1981), cert. denied, 461U.S.957 (1983). "The court may
not try the case de nova nor resolve conflicts in evidence, nor decide questions of credibility."

Bradley v. Secretary of Health and Human Services, 862 F.2d 1224, 1228 (6'h 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 ALJ." Key v. Callahan, 109 F.3d 270, 273 (6th
Cir.1997).

B.

Plaintifrs Contentions on Appeal

Plaintiff contends that the ALJ's finding of no disability is erroneous because: (I) the
ALJ erred in formulating the RFC; (2) the ALJ did not reasonably rely upon the testimony of the
VE and (3) the ALJ should have found that Plaintiff met the requirements of Grid 202.0 I.

C.

Analysis of Contentions on Appeal

The responsibility for determining a claimant's residual functional capacity is reserved to
the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2), 404.1545.3 The ALJ considers numerous
factors in constructing a claimant's residual functional capacity, including the medical evidence,
the non-medical evidence, and the claimant's credibility. See Coldiron v. Comm 'r ofSoc. Sec.,
391 F. App'x 435, 443 (6th Cir. 2010) (unpublished). In making this determination, the ALJ is
required to resolve conflicts in the evidence and incorporate only those limitations that he finds
credible in the residual functional capacity assessment. See Casey v. Sec '.Y ofHealth & Human

Servs., 987 F.2d 1230, 1234-1235 (6th Cir. 1993). Where there are conflicts regarding the

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evidence, the ALJ's findings of credibility are entitled to great deference. See Anthony v. Astrue,
266 F. App'x 451, 460 (6th Cir. 2008) (unpublished) (citingKingv. Heckler, 742 F.2d 968, 97475 (6th Cir. 1984)).
It is clear from the ALJ's decision that he thoroughly reviewed the medical evidence. He
found that, although Plaintiff had heart-related issues, his condition improved after 2005.
Moreover, there are no medical assessments which would support Plaintiffs claim of disabling
limitations. The only medical opinion in the record is that of a state agency physician, Lisa
Beihn, M.D .. She reviewed Plaintiffs medical records in March 2012 and opined that, through
his December 31, 2008 date last insured, Plaintiff could lift and carry 50 pounds occasionally and
25 pounds frequently; could sit and stand or walk six hours each in an eight-hour workday; and
should avoid concentrated exposure to extreme temperatures, but had no limitations to being
around wetness, humidity, noise, vibration, pulmonary irritants, and hazards (Tr. 76-77).

In

other words, she opined that Plaintiff could perform a range of medium work. The ALJ
incorporated Dr. Beihn's findings into the RFC but added additional postural and environmental
restrictions.
In support of his argument that the RFC is flawed, Plaintiff points to no evidence which
substantiates his claim that he cannot perform work in the range described by the ALJ.
With regard to the VE, the hypothetical questions posed complied with this circuit's longstanding rule that the hypothetical question is proper where it accurately describes a claimant's
functional limitations. Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779.
(6'h Cir. 1987). This rule is necessarily tempered by the requirement that the ALJ incorporate
only those limitations which he or she finds to be credible. Casey v. Secretary ofHealth and

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Human Services, 987 F.2d 1230, 1235 (61h Cir. 1993). In this case, the hypotheticals posed

accurately portray the RFC as formulated based upon the objective medical evidence. As such,
the Comi finds that the ALJ's RFC and findings based upon the VE's testimony are supported by
substantial evidence in the record.
Plaintiff asserts a somewhat vague argument that the testimony of the VE was
inconsistent with the Dictionary of Occupational Titles ("DOT"). However, while the ALJ may
take judicial notice of and rely upon published vocational resources, including the DOT, the ALJ
may also use vocational experts as sources of occupational evidence. See 20 C.F.R. §§
404.1560(b)(2), 404.1566(d) and 20 C.F.R. § 404.1566(e). SSR 00-4p provides that vocational
expert testimony "generally should be consistent with the occupational information supplied by
the DOT," and the ALJ must elicit a reasonable explanation for any apparent umesolved conflict
between the two sources.
In this case, ALJ then asked the vocational expert if his testimony was consistent with
the DOT (Tr. 58). The vocational expert testified that his testimony was consistent with the DOT
aside from some limitations in the residual functional capacity assessment that were not
contemplated by the DOT job description and the limited education level of the individual,
explaining that he had reduced the number of jobs available to account for those inconsistencies
based on his "professional experience and training" (Tr. 58). The VE acknowledged that his
testimony was inconsistent with the DOT in some respects and he explicitly indicated how he
accounted for the inconsistencies (Tr. 58).

The VE identified two jobs in the DOT that a

hypothetical individual with Plaintiffs vocational characteristics and ability to perform a reduced
range of medium work could perform, and reduced the number of these jobs to the extent

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Plaintiff's ability to perform work differed from the requirements of the job descriptions in the
DOT. The ALJ' s reliance on the vocational expeti was entirely reasonable, The Court finds no

error in this regard.
As for Plaintiff's contention that the GRID direct a finding of disability, his argument is
without merit.
The "grids" may be referenced by the Commissioner in canying the burden at Step 5
unless the claimant suffers from nonexetiional limitations which significantly limit the range of
work permitted by his exertional limitations. See Cole v. Secretwy ofHealth and Human
Services, 820 F.2d 768, 771 (6'h Cir. 1987).

In support of his argument, Plaintiff states that if the ALJ had found he was limited to
light work, grid rule 202.01 would have directed a finding a disability [Docket No. 12, pg. 10].
While this may be accurate, the ALJ did not limit Plaintiff to light work as there was no medical
source opinion of record to support that finding (Tr. 24). Rather, the ALJ reasonably limited
Plaintiff to a range of medium work consistent with the only medical source opinion ofrecord.

III. CONCLUSION
The Court finds that the ALJ' s decision is supported by substantial evidence on the
record. Accordingly, it is HEREBY ORDERED that the Plaintiff's Motion for Summary
Judgment be OVERRULED and the Defendant's Motion for Summmy Judgment be

SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously
herewith.

/,·.c·:t'~~·of September, 2016.
day
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This ,,.;

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