Bruce v. SSA
Filing
25
MEMORANDUM OPINION & ORDER: The Court finds that the ALJ's decision is supported by substantial evidence on therecord. Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for SummaryJudgment be OVERRULED and the Defendant's Motion for Summary Judgment beSUSTAINED. A judgment in favor of the Defendant will be entered contemporaneouslyherewith.. Signed by Judge Henry R. Wilhoit, Jr on 02/20/2018.(KRB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
at COVINGTON
Civil Action No. 17-15-HRW
JAMES MICHAEL BRUCE,
v.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
NANCY A. BERRYHILL,
ACTING 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 his application for disability insurance benefits. The Court
having reviewed the record in this case and the dispositive motions filed by the parties, 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 in October 2015,
alleging disability beginning in October 2014, due to "back injury, severe arthritis, PTSD with
anxiety, TBI, bilateral sensorineural hearing loss, recurrent tinnitus, TMJ, allergic rhinitis,
GERD, left shoulder surgery and right elbow surgery" (Tr. 199). This application was denied
initially and on reconsideration. Thereafter, upon request by Plaintiff, an administrative hearing
was conducted by Administrative Law Judge Anne Shaughnessy (hereinafter "ALJ"), wherein
Plaintiff, accompanied by counsel, testified. At the hearing, Suman Srinivasan, a vocational
expert (hereinafter "VE"), also testified.
At the hearing, pursuant to 20 C.F.R. § 416.920, the ALJ 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.
The ALJ issued a decision finding that Plaintiff was not disabled (Tr. 20-30). Plaintiff
was 39 years old on the alleged date of onset. He has a high school education education (Tr.
201 ). His past relevant work experience consists of work as an infantryman and recruiter (Tr.
208).
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. 22).
The ALJ then determined, at Step 2, that Plaintiff suffers from facet arthritis of the
lumbar spine and PTSD, which he found to be "severe" within the meaning of the Regulations
(Tr. 22-23).
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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. 23-24).
The ALJ further found that Plaintiff could not return to his past relevant work (Tr. 28) but
determined that he has the residual functional capacity ("RFC") to perform a range of light work
with the following restrictions:
He can climb ladders, ropes, and scaffolds occasionally. He should
avoid concentrated exposure to extreme cold, wetness, vibration,
and hazards. He can understand and remember simple and detailed
work procedures and instructions. He can tolerate coworkers and
accept supervision in a generally object-focused context with
infrequent and casual contacts with only occasional contact with
the public. He would need a static work setting with infrequent
changes.
(Tr. 24).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 29).
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 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 ALJ's decision is supported by
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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 of Health and Human
Services, 667 F.2d 524, 535 (6th 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 of Health 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 ALJ." Key v. Callahan, 109 F.3d 270, 273 (6th
Cir.1997).
B.
Plaintiff's Contentions on Appeal
Plaintiff alleges several claims of error:
( 1)
the ALJ failed to identify obesity as a severe impairment at Step Two and to
consider it at all stages of the sequential evaluation;
(2)
the ALJ failed to adequately account for Plaintiffs moderate limitation in
concentration, persistence, or pace;
(3)
the ALJ failed to properly evaluate the medical opinions in the record;
(4)
the ALJ improperly discounted the VA rating of disability;
(5)
the ALJ erred in evaluating Plaintiffs credibility and symptom severity; and
(6)
the hypothetical question to the VE was flawed.
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C.
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ failed to identify obesity as a severe
impairment at Step Two and to consider it at all stages of the sequential evaluation. At the
hearing, Plaintiff testified that he stood 6'1' and weighed 202 pounds (Tr. 40). However,
according to the pertinent Social Security guidelines, he is not "obese." As Social Security
Ruling (SSR) 02-0lp notes, "National Institutes of Health (NIH) established medical criteria for
the diagnosis of obesity .... For adults, both men and women, the Clinical Guidelines describe a
BMI [body mass index] of 25-29.9 as 'overweight' and a BMI of 30.0 or above as 'obesity."'
2002 WL 34686281, at *2.
Plaintiff never had a BMI of 30 or above (Tr. 289 (October 2014: 26.47), Tr. 286
(February 2015: 28.1), 558 (December 2015 (26.4), 590 (January 2016: 27), 589 (March 2016:
27), 674 (September 2016: 27)). Thus, while Plaintiff was overweight, he was not obese per the
applicable Regulations.
Notwithstanding the BMI score which puts him outside of the definition of "obese," there
is no evidence in the record that his weight affected his ability to work. In fact, in his notes from
an examination of Plaintiff in February 2016, Benjamin Risner, M.D. observed "the claimant's
weight did not affect his ability to ambulate, sit, and stand, nor breathing/fatigue." (Tr. 584).
The Court finds Plaintiffs allegation of error with regard to obesity to be without merit.
Plaintiffs second claim of error is that the ALJ failed to adequately account for Plaintiffs
moderate limitation in concentration, persistence, or pace. In faulting the ALJ' s analysis of these
factors, Plaintiff relies upon cases outside of the Sixth Circuit, specifically, the Eastern District of
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Pennsylvania as well the Fourth and Seventh Circuits, which appear to stand for the proposition
that a limitation to simple or unskilled work does not account for a moderate limitation in
concentration, persistence, or pace. However, as Defendant points out, without our circuit,
courts have emphasized the need for a case-by-case analysis when assessing whether a limitation
to unskilled work adequately accounts for a concentration/persistence/pace deficiency.
Bickerstaff v. Comm 'r of Soc. Sec., No. 2:15-CV-10917, 2016 WL 4182756, at *12 (E.D. Mich.
July 15, 2016), report and recommendation adopted, No. 15-10917, 2016 WL 4158383 (E.D.
Mich. Aug. 5, 2016) (unpublished) (distinguishing Edwards v. Barnhart, 383 F. Supp. 2d 920,
930 (E.D. Mich. 2005), which Plaintiff cites). Other districts in this Circuit have also rejected the
argument that a limitation "to 'simple work' is somehow legally deficient." Hycoop v. Comm 'r of
Soc. Sec., No. 1:15-CV-795, 2016 WL4500794, at *3 (W.D. Mich. Aug. 29, 2016)
(unpublished).
Here, the jobs the ALJ relied on at step five were unskilled jobs (Tr. 29). Unskilled jobs
by definition involve only understanding, remembering, and carrying out simple tasks and would
account for a moderate limitation in concentration/persistence/pace. SSR 96-9p, 1996 WL
374185, at *9. Other than arguing semantics, Plaintiff has no offered any evidence that he is
more limited than what is reflected in the RFC.
Plaintiff's third claim of error is that the ALJ failed to properly evaluate the opinions of
the medical sources in the record. The opinions at issue are those of consultative examiners
Geoff Schwerzler, Psy.D and Benjamin Risner, M.D. and reviewing physicians, Ed Ross, PH.D.,
Paul Ebben Psy.D. and Robert Brown, M.D.
"In order to determine whether the ALJ acted properly in disagreeing with a medical
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source, we must first determine the medical source's classification," Ealy v. Comm 'r of Soc. Sec.,
594 F.3d 504, 514 (6th Cir.2010), as "not all medical sources need be treated equally," Smith v.
Comm 'r of Soc. Sec., 482 F.3d 873, 875 (6th Cir.2007). The Social Security regulations classify
"acceptable medical sources into three types: nonexamining sources, nontreating (but examining)
sources, and treating sources." Id. at 875. Generally, more weight is given to the medical
"opinion of a source who has examined [the claimant] than to the opinion of a source who has
not examined [the claimant]." 20 C.F.R. § 404.1527(c)(l); see also Norris v. Comm'r of Soc.
Sec., 461 Fed.Appx. 433, 439 (6th Cir.2012) (noting that a nonexamining source's opinion is
given less deference than an examining (but not treating) source's opinion, which is given less
deference than a treating source). But "[i]n appropriate circumstances, opinions from State
agency medical and psychological consultants ... may be entitled to greater weight than the
opinions of treating or examining sources." SSR 96-6p, 1996 WL 374180, at *3. One such
instance is where the "[s]tate agency medical or psychological consultant's opinion is based on a
review of a complete case record that includes a medical report from a specialist in the
individual's particular impairment which provides more detailed and comprehensive information
than what was available to the individual's treating source." Id. "The more a medical source
presents relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight [the ALJ] will give that opinion." 20 C.F.R. § 404.1527(c)(3).
Generally, more weight is given to opinions that are "more consistent ... with the record as a
whole," id. § 404.1527(c)(4), and opinions of "a specialist about medical issues related to his or
her area of specialty." Id.§ 404.1527(c)(5).
In January 2016, Plaintiff underwent a consultative psychological examination by Geoff
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Schwerzler, Psy.D. (Tr. 525-30). Plaintiff reported a TBI and PTSD from his time in the Army
and claimed he had received therapy and psychiatric treatment between 2012 and 2015, but was
not in therapy at the time of Dr. Schwerzler's examination (Tr. 526). Dr. Schwerzler noted that
Plaintiffs thoughts were clear and coherent, but he exhibited hypervigilance, shaking, and biting
nails (Tr. 528). His judgment was adequate, concentration and attention were average, and
working memory was average, but immediate memory was below average (Tr. 528-29). Dr.
Schwerzler diagnosed PTSD (Tr. 529). He opined that Plaintiff could understand, remember, and
follow simple instructions, but would have a more difficult time with complex instructions (Tr.
529). Despite exam findings showing average attention and concentration (Tr. 528), Dr.
Schwerzler opined Plaintiff had impaired attention and concentration that would likely interfere
with functioning (Tr. 529). He also opined that Plaintiff would be severely limited in adapting
and responding to stress and responding to pressure in a normal work setting (Tr. 529).
In February 2016, Benjamin Risner, M.D., examined Plaintiff (Tr. 583). Plaintiff
reported low back pain, PTSD, and a TBI (Tr. 583). Dr. Risner noted that Plaintiffs gait was
normal, he had full 5/5 strength in all muscle groups, had no tenderness, had full range of
motion, and was able to stand and walk without difficulty (Tr. 584). He opined that Plaintiff
"should be able to lift, sit, stand, bend, carry, and ambulate without difficulty" (Tr. 584).
After the consultative examinations, Ed Ross, Ph.D., reviewed the record and opined that
Plaintiff could understand and recall simple and detailed instructions, maintain attention for two
hours, tolerate coworkers and supervision in an object-focused context, and have infrequent and
casual contact with the general public (Tr. 71). Paul Ebben, Psy.D., agreed with Dr. Ross's
opinion (Tr. 91-92). Robert Brown, M.D., reviewed the record and opined that Plaintiff had
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physical abilities consistent with medium work (Tr. 87-89). See 20 C.F.R. § 404.1567 ( c).
Plaintiff argues that the ALJ's decision is inconsistent with Dr. Schwerzler's opinion
because he found that Plaintiffs attention and concentration were impaired and would likely
interfere with functioning.
The Court disagrees with Plaintiffs interpretation of Dr. Schwerzler's opinion. To be
sure, Dr. Schwerzler specifically noted that Plaintiffs "[ c]oncentration and attention appeared
average" (Tr. 529). Dr. Schwerzler appears to have accounted for any attention and
concentration deficit by finding Plaintiff capable of only simple work, rather than complex work
(Tr. 529). Indeed, Dr. Ross interpreted Dr. Schwerzler's opinion that way. (Tr. 66 and 71).
Plaintiff also argues that the ALJ erred in discounting the opinions of Dr. Risner and Dr.
Brown, a reviewing physician. However, the ALJ gave Plaintiff the benefit of the doubt and
found more limitations than either doctor identified. Dr. Risner opined Plaintiff would have no
difficulty lifting, standing, sitting, bending, carrying, or walking (Tr. 584). Dr. Brown opined
Plaintiff could perform medium work (Tr. 87-89). But the ALJ found Plaintiff was capable of
only light work based on the significantly abnormal MRI findings (Tr. 24, 27). Indeed, not
adopting the state agency reviewers' opinions in their entire but giving Plaintiff the benefit of the
doubt based on is testimony, is an approach that favors Plaintiff and does not support reversal or
remand. See Kaplun v. Comm'r of Soc. Sec., No. 2:14-CV-0439, 2015 WL 736475, at *6 (S.D.
Ohio Feb. 20, 2015), report and recommendation adopted, 2015 WL 1954453 ("[A]ny error in
not adopting the state agency reviewers' opinions in their entirety-as opposed to the ALJ's
approach of according them significant weight but giving Plaintiff the benefit of the doubt based
on is testimony-would be harmless, since that approach is also more favorable to the
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Plaintiff.").
Plaintiff also argues that the ALJ should have adopted the November 2015 determination
of disability by the Veteran's Administration (Tr. 164-16 7). However, the ALJ was not required
to accept the disability rating made by the Veterans Administration. The Social Security
disability rules are clear:
A decision by any ... other governmental agency about whether you
are disabled ... is based upon its rules and is not our decision about
whether you are disabled ....
We must make a disability ... determination based on social
security law. Therefore, a determination made by another agency
that you are disabled ... is not binding on us.
20 C.F.R. § 404.1504.
A disability rating from the Veterans Administration is entitled to consideration, but we
have not specified the weight such a determination should carry when determining social security
disability eligibility. Stewart v. Heckler, 730 F.2d 1065, 1068 (6th Cir.1984).
Notably and relevant to the weight an ALJ should give a VA rating, "[ c]laimants under the Social
Security Act are subject to a more rigorous standard than those under the Veteran's
Administration, and thus the VA's rating decision is not necessarily controlling." Paul v. Astrue,
827 F. Supp. 2d 739, 743 (E.D. Ky. 2011).
In this case, the record reflects that the ALJ gave consideration to the Veterans
Administration disability determination: "[l]ittle weight is given to the VA decision to find
claimant 100% disabled. Different agencies have different definitions of disability" (Tr. 27).
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Although not citing the Social Security Regulations, the ALJ stated a proper understanding of
the law that she is not bound by the VA' s finding.
The ALJ also referred to notes from an Army psychologist (Tr. 25). The notes state that
there was "no mention of PTSD diagnosis" and "no AHLTA [Armed Forces Longitudinal
Technology Application] and/or VA records supporting and/or confirming [a traumatic incident],
being diagnosed with PTSD and/or receiving treatment for PTSD" (Tr. 436). The Army
psychologist also noted that Plaintiffs anxiety symptoms "responded well to treatment" and that
Plaintiff reported "treatment has lessened his anxiety" (Tr. 436). Finally, with regard to a
traumatic brain injury, the Army psychologist noted that a neuropsychologist observed that, while
Plaintiff probably had multiple mild head injuries, he had recovered (Tr. 436). There was no
record of Plaintiff needing treatment and his commander did "not report problems with memory
loss, headaches, and/or irritability" (Tr. 436).
The ALJ also specifically stated she gave "some weight" to assessment of a military
physician's January 2015 assessment of certain exertional limitations (Tr. 27).
The Court finds no error in the ALJ's consideration of the VA's determination. She did
not ignore the VA determination. Moreover, given the differing standards of review and the
notes in the record, it was reasonable for the ALJ to not adopt the VA's determination.
Plaintiff also argues that the ALJ erred in evaluating Plaintiffs credibility and symptom
severity.
It is well established that as the "ALJ has the opportunity to observe the demeanor of a
witness, (her) conclusions with respect to credibility should not be discarded lightly and should
be accorded deference." Hardaway v. Secretary of Health and Human Services, 823 F.2d 922,
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928 (6th Cir. 1987). Subjective claims of disabling conditions must be supported by objective
medical evidence. Duncan v. Secretary of Health and Human Services, 801F.2d847, 852-853
(6th Cir. 1986).
Plaintiff contends that the ALJ failed to take into account his claim that his medication
cause sleepiness and drowsiness. However, the ALJ explicitly referred to his testimony in this
regard (Tr. 25). There is very little in the record to support Plaintiffs complaints of sleepiness
due to medication and how this may affect his ability to perform work-related activity. Rather,
there is evidence in the record that Plaintiff was sleepy because he was noncom pliant with his
sleep apnea treatment (Tr. 602) even after he was prescribed a new CPAP mask (Tr. 679).
Plaintiff also asserts that the ALJ did not properly assess his "persistent attempt to treat
his pain" (Pl. Memo. at 13). To the contrary, the ALJ noted that Plaintiff was trying very little to
relieve his symptoms: "the medical record indicates that the claimant was essentially normal on
examination in 2016, that he had never undergone musculoskeletal surgery, and that he is
receiving no treatment from a mental health professional" (Tr. 28). Again, the ALJ considered
Plaintiffs subjective complaints and weighed them against the evidence in the record. The Court
finds no error in the ALJ's consideration of Plaintiffs credibility.
Finally, Plaintiff complains that the ALJ did not give enough credit to the fact that he had
an excellent work history (Tr. 25). But as Plaintiff concedes, the ALJ recognized this (Tr. 25),
but had to weigh this factor against the medical evidence and Plaintiffs limited treatment. This
was the ALJ's job as the finder of fact. Perales, 402 U.S. at 399 ("We ... are presented with the
not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve
that conflict.").
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Finally, Plaintiff maintains that the hypothetical question to the VE was flawed.
However, the Court finds that it accurately portrayed the claimant's abilities and limitations, as
required by Varley v. Secretary of Health and Human Services, 820 F.2d 777 (6th Cir. 1987) and
its progeny. 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 of Health and Human
Services, 987 F.2d 1230, 1235 (6th Cir. 1993).
Based upon the credible medical evidence in the record and evaluation of claimant's daily
activities, the ALJ crafted a hypothetical which accurately contemplated the same. In response to
the ALJ's hypothetical, the VE cited to a significant number of jobs the hypothetical individual
could perform. The VE's responsive testimony provided substantial evidence to support the
ALJ' s decision that claimant was not disabled.
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 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
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Signed By:
Heney R. Wilhoit Jc,
United 8t1t11 District Judge
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