Shields v. SSA
MEMORANDUM OPINIOIN AND ORDER; 1)Pla, Darlena Shields' 13 Motion for Summary Judgment is DENIED; 2)Commissioner of Social Security's 15 Motion for Summary Judgment is GRANTED; 3)A Judgment will issue contemporaneously w/this Memorandum Opinion & Order. Signed by Judge Joseph M. Hood on 5/11/2017. (LST)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security, )
Civil No. 2:16-cv-170-JMH
MEMORANDUM OPINION AND ORDER
Plaintiff Darlena Shields 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, will AFFIRM the Commissioner’s decision, as
it is supported by substantial evidence.
Judicial review of the Commissioner’s decision is limited to
determining whether it is supported by substantial evidence and
was made pursuant to proper legal standards.
Cutlip v. Sec’y of
“Substantial evidence” is defined as “more than a scintilla of
evidence but less than a preponderance; it is such relevant
The caption of this matter is amended to reflect that Nancy A. Berryhill became
the Acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin in that role.
evidence as a reasonable mind might accept as adequate to support
Courts are not to conduct a de novo review,
Rather, we are to affirm the Commissioner’s
decision, provided it is supported by substantial evidence, even
if we might have decided the case differently.
See Her v. Comm’r
of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step
See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474
(6th Cir. 2003).
Step One considers whether the claimant is still
performing substantial gainful activity; Step Two, whether any of
the claimant’s impairments 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 his past relevant
work; and Step Five, whether significant numbers of other jobs
exist in the national economy which the claimant can perform.
to the last step, the burden of proof shifts from the claimant to
Id.; see also Preslar v. Sec’y of Health & Human
Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
On May 17, 2013, Plaintiff protectively filed a Title II
application for a period of disability and disability insurance
She also protectively filed a
Title XVI application for supplemental security income (“SSI”) on
In both applications, Plaintiff alleged
Plaintiff’s claims were denied initially and on reconsideration.
[TR 51-67, 68-71, 75-77].
On September 16, 2015, Administrative
Law Judge (“ALJ”) Roger L. Reynolds held an administrative hearing
at Plaintiff’s request.
October 23, 2015.
[TR 89, 549-86].
ALJ Reynolds issued a
At Step One of the disability determination process, ALJ
Reynolds found that Plaintiff had not engaged in substantial
gainful activity since the alleged onset date.
impairments: chronic obstructive pulmonary disease (“COPD”) with
artery disease, rule out cardiac syndrome X; degenerative disc
disease of the lumbar spine with disc bulges/protrusions at the
L3/4 and L4/5 levels and grade I spondylolisthesis of L5 on S1;
disease of the right knee; bilateral carpal tunnel syndrome;
otherwise specified); and major depressive disorder.
At Step Three, ALJ Reynolds determined that Plaintiff did not
have an impairment or combination of impairments listed in, or
medically equal to, an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
In reaching this conclusion,
ALJ Reynolds found that “the medical evidence does not prove the
severity of nerve root compromise, or ambulation or manipulative
difficulties, required to meet or equal a listing in Section 1.00
and following, which discuss musculoskeletal impairments.
He also concluded that Plaintiff did not meet Listing 3.02
sophisticated pulmonary function or spirometric tests in measuring
the degree of: obstructive pulmonary disease (FEV1), restrictive
ventilator disease (FVC), or chronic impairment of gas exchange.”
Plaintiff did not meet the requirements of Listing 3.10
(sleeping disorders) because she did not “prove either a cor
pulmonale (failure of the right side of the heart) secondary to
chronic pulmonary hypertension (Listing 3.09) or an organic mental
disorder (Listing 12.02).”
ALJ Reynolds then considered the listings under Section 4.00
and following, which pertain to cardiovascular impairments.
He found that the record “does not contain the necessary
symptom complexes, clinical signs, functional tests, or diagnostic
ALJ Reynolds next discussed Listing 11.14
(pheripheral neuropathies), concluding that Plaintiff did not have
“disorganization of motor function in the extremities of the
magnitude contemplated in this listing.”
determined that Plaintiff’s mental impairments did not meet or
(anxiety-related disorders) because she only had mild restrictions
in activities of daily living and moderate difficulties with social
extended episodes of decompensation.2
Before proceeding to Step Four, ALJ Reynolds noted that
Plaintiff had filed a previous application for benefits, which was
denied by ALJ Gloria York on March 16, 2012.
that her findings would preclude him from making a different
finding on Plaintiff’s subsequent claim unless there was new
evidence or changed circumstances.
He then explained that
At Step Three of his analysis, ALJ Reynolds further noted that Listing
9.00.B.5 (diabetes mellitus) “recognize[es] that diabetes can have effect in
other body systems” and “refers the evaluator to other listings contained in
1.00 (musculoskeletal), 2.00 (special senses/vision), 4.00 (cardiovascular),
5.00 (digestive), 6.00 (genitourinary), 8.00 (skin infections), 11.00
(neurological), and 12.00 (mental/cognitive).” [Id.]. He then explained that
Plaintiff’s “treatment records have not exhibited the severity of signs,
symptoms, or complications sufficient to meet or medically equal any listing in
any of these categories.” [Id.].
ALJ Reynolds also considered the additive effects of obesity in evaluating
each Listing. [TR 20]. He determined “that the severe impairment of obesity,
combined with another impairment or impairments, is not of such a magnitude
that it would ‘medically equal’ a listed impairment.” [Id.]. However, he did
consider obesity in assessing Plaintiff’s residual functional capacity prior to
Step Four. [Id.].
“new medical evidence establishes the existence of additional
severe impairments and the residual functional capacity merits
limitations in addition to those imposed by ALJ York.”
Plaintiff had the residual functional capacity (“RFC”) to perform
404.1567(c) and § 416.967(b).
She cannot climb ropes, ladders or scaffolds, but she
can occasionally climb stairs or ramps. She can
occasionally stoop, kneel, crouch or crawl. The claimant
cannot perform aerobic activities such as running or
jumping. She cannot work with her hands over the head.
The claimant cannot operate foot pedal controls. She
should avoid exposure to concentrated dust, gases,
smoke, fumes, temperature extremes, and excess humidity.
She should avoid concentrated vibration or industrial
hazards. The claimant requires entry-level work with
simple repetitive procedures. She can tolerate only
occasional changes in work routines. The claimant should
work in an object-oriented environment with only
supervisors or the general public.
He then found that Plaintiff was unable to perform any
past relevant work at Step Four.
However, he noted that
transferability of job skills was not material to the disability
determination because “using the Medical-Vocational Rules as a
framework supports a finding that the claimant is ‘not disabled,’
whether or not the claimant has transferable job skills.”
Nevertheless, ALJ Reynolds proceeded to the final step of the
At Step Five, he determined
that there were a significant number of other jobs in the national
economy that Plaintiff could perform. [TR 29]. ALJ Reynolds based
this conclusion on testimony from a vocational expert (“VE”), in
response to a hypothetical question assuming an individual of
Plaintiff’s age, education, work experience, and RFC.
VE testified that such an individual could find light unskilled
work as an inspector (4,200 Kentucky/300,000 nationally), hand
packer (3,200 Kentucky/195,000 nationally), or assembler (4,900
Such an individual could
Based on the testimony of
the VE, ALJ Reynolds found that Plaintiff was capable of making a
successful adjustment to other work.
Thus, he concluded
that Plaintiff was not under a “disability,” as defined by the
Social Security Act, from March 17, 2012, the alleged onset date,
through the date of the administrative decision.
ALJ Reynolds’s decision became the final decision of the
Commissioner when the Appeals Council denied review on July 21,
Plaintiff filed the instant action on September
22, 2016. [DE 2]. Consistent with the Court’s Standing Scheduling
judgment, which are now ripe for review.
[DE 13, 15].
supported by substantial evidence because he improperly weighed
opinions from medical sources and effectively substituted his own
The Court will address each of these arguments in
In order to determine whether the plaintiff is able to perform
past relevant work, the ALJ must first “evaluat[e] the medical
evidence and the claimant’s testimony to form an assessment of
[his or her] residual functional capacity.”
Webb v. Comm’r of
Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (internal quotations
The RFC assessment is a determination of how the
claimant’s “impairments, and any related symptoms, such as pain,
… cause physical and mental limitations that affect what [he or
she] can do in a work setting.”
C.F.R. § 416.945(a)(1).
20 C.F.R. § 404.1545(a)(1); 20
It is “based on all of the relevant
“statements about what [the claimant] can still do that have been
provided by medical sources,” as well as descriptions of the
claimant’s limitations that have been provided by the claimant and
his or her family members.
20 C.F.R. § 404.1545(a)(3); 20 C.F.R.
classified as treating sources, non-treating sources, and nonexamining sources. 20 C.F.R. § 404.1527(c); 20 C.F.R. § 416.945(c).
Dr. Lohman’s Opinion
A treating source is a “physician, psychologist, or other
acceptable medical source who … has, or has had, an ongoing
treatment relationship” with the claimant.
source’s opinion is entitled to controlling weight if the “opinion
on the issue(s) of the nature and severity of [the claimant's]
impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in [his or her] case record.”
“If the ALJ decides not to give a treating physician’s opinion
controlling weight, the ALJ may not reject the opinion but must
apply other factors to determine what weight to give the opinion.”
Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 437 (6th Cir. 2013)
Such factors include “‘the length of the treatment relationship
and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency
of the opinion with the record as a whole, and the specialization
of the treating source.’”
Id. (quoting Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. §
The ALJ must articulate “‘specific reasons for the weight
given to the treating source’s medical opinion, supported by the
evidence in the case record, and must be sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for
Id. (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188,
at *5); see also 20 C.F.R. § 1527(d)(2) (explaining that such
deference is given to treating physicians because “these sources
are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [the claimant’s] impairments”).
In this case, ALJ Reynolds analyzed the opinion of Plaintiff’s
treating cardiologist, Dr. Eric Lohman, as follows:
Eric Lohman, MD, a cardiologist, provided many records
following the Meadowview visits. The claimant complained
of shortness of breath consistently, with less frequent
complaints of chest pain and dizziness. Respiratory
examinations generally showed clear lungs. Cardiac
catheterization of July 17, 2014, was essentially
unchanged from the May 2013 catheterization. “We will
look for noncardiac causes of chest pain and shortness
of breath.” Note of January 30, 2015 carried the same
general tone. “She is doing well from a cardiac
Dr. Lohman completed a functional capacity form on
September 4, 2015. The form set forth questions with
extensive narrative from the representative, and asked
for Dr. Lohman’s assessment of all conditions, whether
he treated them or not. Dr. Lohman limited the claimant
to four hours sitting in the eight-hour workday and two
hours standing or walking during the eight-hour workday.
The claimant could lift 10 pounds occasionally. She
would be off task more than 10% of the workday due to
side effects of medication (after the representative
recited the claimant’s subjective statements).
The undersigned gives significant weight to Dr.
Lohman’s clinic notes and objective findings, but the
undersigned does not give weight to Dr. Lohman’s
functional capacity questionnaire. The questionnaire
asks the doctor to make assumptions, e.g. side effects
of medications, which are beyond his experience with
this patient and not strongly documented in the overall
record. Further, the extreme limitations in the
questionnaire are not compatible with his earlier
statement of “She is doing well from a cardiac
standpoint” (see citation above).
Plaintiff argues that ALJ Reynolds erred in giving no weight
to Dr. Lohman’s functional capacity questionnaire and in failing
to articulate good reasons for doing so.3
ALJ Reynolds explained that he was giving no weight to the opinions
expressed in this questionnaire because Dr. Lohman’s answers were
based, at least in part, on suppositions that were beyond his
experience with Plaintiff.
Moreover, these opinions
were inconsistent with Dr. Lohman’s clinical notes and objective
In her brief, Plaintiff repeatedly indicates that Dr. Lohman limited her to
[DE 13 at 9].
Although Dr. Lohman imposes limitations on
Plaintiff that may well be consistent with sedentary work, he does not actually
state that Plaintiff was limited to sedentary work. [TR 547-49]. The same is
true of the opinions given by Dr. Gothra, Dr. Luking, and Dr. Reed, discussed
infra. However, even if one of these physicians had expressed such an opinion,
it would not have been entitled to any particular weight because the RFC is an
issue reserved for the Commissioner.
See 20 C.F.R. § 404.1527(d)(1)-(3); §
findings, which ALJ Reynolds had reviewed and afforded significant
Because ALJ Reynolds gave sufficiently specific reasons
for the weight given to the opinions contained in Dr. Lohman’s
functional capacity questionnaire, and supported that conclusion
with citations to evidence in the record, the Court finds that his
Dr. Ghotra’s Opinion
A non-treating source is an acceptable medical source who has
examined the claimant but does not have an ongoing treatment
relationship with him or her.
“[O]pinions from sources other
Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *2 (July 2,
Instead, the ALJ must weigh the opinion by considering
“the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the
record as a whole, and the specialization of the treating source.”
20 C.F.R. § 404.1527(d)(2); 20 C.F.R. § 416.927(d)(2).
ALJ will likely prioritize a treating source's non-controlling
opinion over a non-treating source's opinion (and a non-treating
source's opinion over a non-examining source's opinion), deviation
from this general approach is not a per se error of law.
§ 404.1527(c); 20 C.F.R. § 416.927(c).
physician, Dr. Aman Gothra, as follows:
Dealing first with physical impairments, Aman Gothra,
MD, performed a consultative examination on September 9,
arthritis, and chronic obstructive pulmonary disease.
She alleged pain all over her body. Clinical examination
showed moderately decreased strength in the upper and
lower extremities but good grip strength on the left
side. The claimant exhibited normal reflexes, gait, and
posture. She had good range of motion in all joints
except for lumbar forward flexion, lumbar lateral
flexion, and hip flexion. The claimant could sit in place
30 minutes, stand 15-20 minutes and walk two blocks. She
could lift and carry 15 pounds and handle less than 20
pounds. She did not need assistive devices for
consultative examiner, Dr. Gothra, as his extremely
short sitting, standing, and walking intervals are not
supported by the overall objective evidence.
[TR 24, 27].
In her brief, Plaintiff seems to complain that ALJ Reynolds
gave little weight to Dr. Gothra’s opinion, while simultaneously
arguing that Dr. Gothra’s opinion is of limited utility because it
addressed simultaneously, as this passage demonstrates that ALJ
Reynolds appropriately weighed Dr. Gothra’s opinion.
he considered the nature and extent of Dr. Gothra’s treatment
relationship with Plaintiff, the supportability of his opinion,
and the consistency of his opinion with the record as a whole.
then concluded that Dr. Gothra’s opinion was entitled to little
weight because his suggested limitations, based on one examination
evidence in the record as a whole.
Thus, the Court finds that ALJ
Reynolds’s weighing of this non-examining source opinion is also
supported by substantial evidence.
Dr. Reed’s and Dr. Luking’s Opinions
A non-examining source has not examined the claimant but
provided medical or other opinion evidence in the case.
§ 404.1527(d)(2); 20 C.F.R. § 416.927(d)(2).
The ALJ weighs such
opinions by considering the same factors discussed in the preceding
Again, an ALJ will likely prioritize a treating
source's non-controlling opinion over a non-treating source's
opinion (and a non-treating source's opinion over a non-examining
source's opinion), deviation from this general approach is not a
per se error of law.
20 C.F.R. § 404.1527(c); 20 C.F.R. §
ALJ Reynolds evaluated the opinions of two non-examining
physicians, Dr. Rebecca Luking and Dr. Jack Reed, as follows:
Rebecca Luking, DO, a State agency medical consultant,
completed a functional capacity assessment on October
16, 2013. Dr. Luking recommended lifting and carrying
limits of 20 pounds occasionally and 10 pounds
frequently. The claimant could stand and walk six hours
in an eight-hour workday. Jack Reed, MD, a State agency
medical consultant, agreed with Dr. Luking in a review
of April 10, 2014.
The undersigned gives little weight to the State
agency consultants, whose opinions predate some of the
[TR 24, 27].
Once again, Plaintiff seems to simultaneously maintain that
ALJ Reynolds erred in his treatment of Dr. Reed’s and Dr. Luking’s
opinions, while also pointing out that these opinions did not
arguments are meritless because the record demonstrates that ALJ
Reynolds appropriately weighed these opinions. He noted that these
two physicians reviewed Plaintiff’s medical records, rather than
actually examining her.
He also explained that their opinions
predated some of the submitted evidence, suggesting that they did
not have a full picture of Plaintiff’s condition and that their
opinions were inconsistent with some of this evidence.
Court finds that ALJ Reynolds’s weighing of this non-examining
source opinion is also supported by substantial evidence.
Throughout her brief, Plaintiff complains that ALJ Reynolds
substituted his own medical judgment for that of the doctors
This thesis seems to be based, at least in part, on the
fact that “the ALJ expressly stated in his decision that he was
giving little to no weight to any of the physicians who had offered
[DE 13 at 12].
As a preliminary matter, the Court
must clarify this assertion.
Although ALJ Reynolds gave limited
weight to the opinions of these physicians, as they pertained to
Plaintiff’s limitations, he also afforded significant weight to
the clinical notes and objective findings of Plaintiff’s treating
physician, Dr. Lohman.
Moreover, the Court is not aware of any
regulation that requires an ALJ to give maximum weight to the
opinion of at least one physician.
ALJ Reynolds was simply
required to review the medical opinions, using the criteria set
forth in the regulations, and explain the weight given to each.
He has satisfied that obligation, as explained supra.4
Plaintiff also bases this argument on the degree of ALJ
Reynolds’s consideration of the actual medical evidence.
instance, “the ALJ stated in his decision that the lumbar MRI only
impinging the L4 nerve root and also ignoring the findings of
spinal stenosis at three levels with the anterolisthesis on L5 on
[DE 13 at 6].
“Likewise, the ALJ in addressing the above
procedures done by Dr. Lohman elected to focus upon the fact that
such degree of stenosis was ‘not felt to justify placement of
Plaintiff also argues that, had ALJ Reynolds credited these opinions, the
Medical-Vocational Guidelines would have directed a finding of “disabled.” [DE
13 at 11]. However, ALJ Reynolds did not credit these opinions, for reasons
explained above, and thus, he was not required to find that she was disabled
under the Medical-Vocational Guidelines.
stents,’ as if that fact meant something to him.” [Id.]. However,
these citations to the record do nothing more than prove that he
painstakingly reviewed the available medical evidence.
no indication that he substituted his own medical judgment for
that of the physicians involved in this case.
On a related note, Plaintiff contends that ALJ Reynolds
minimized the effect of her severe impairments that developed after
ALJ York’s decision. She cites a variety of evidence in the record
to support her assertions about the effects of these impairments.
However, this argument is merely an invitation for the Court to
reweigh the evidence in the record, which is not its role.
25 F.3d at 286; Her, 203 F.3d at 389-90.
Accordingly, the ALJ’s
decision must be affirmed.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
Plaintiff Darlena Shields’s Motion for Summary Judgment
[DE 13] be, and is, hereby DENIED;
The Commissioner of Social Security’s Motion for Summary
Judgment [DE 15] be, and is, hereby GRANTED; and
Memorandum Opinion and Order.
This the 11th day of May, 2017.
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