James v. SSA
Filing
14
MEMORANDUM OPINION & ORDER: That the Plf's Motion for Summary Judgment 11 be OVERRULED and the Def's Motion for Summary Judgment be SUSTAINED. A judgment in favor of Defendant will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 4/13/2018.(ECO)cc: COR
ga,stern District of Kentucky
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
at COVINGTON
Civil Action No. 17-71-HRW
PAUL THOMAS JAMES,
v.
FILED
APR l 3 2018
.AJASMLAND
ROBEC{T R. CARR
CLERK U.S. DiSTR!CT COURT
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 Plaintiffs application for disability insurance benefits and
supplemental security income 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 and supplemental
security income benefits in September 2013, alleging disability beginning in October 2010, due
to "neck fusion with plate, chronic pain, anxiety, ruptured disc, right arm and hand movement
difficulty, right shoulder pain [with] limited movement, right arm and hand numbness, trouble
sleeping (Tr. 200).
This application was denied initially and on reconsideration.
Thereafter, upon request by Plaintiff, an administrative hearing was conducted by
Administrative Law Judge Susan Guiffre (hereinafter "ALJ"), wherein Plaintiff, accompanied by
counsel, testified. At the hearing, Deborah Lee, 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. 25-37). Plaintiff
was 41 years old when he alleges he became disabled, 46 when he was last insured for DIB and
47 on the date of the hearing decision.
He has a high school education (Tr. 201). His past relevant work experience consists of
work as a sales representative (Tr. 202).
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. 27).
The ALJ then determined, at Step 2, that Plaintiff suffers from cervical disc syndrome
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and lumbar disc disorder, which he found to be "severe" within the meaning of the Regulations
(Tr. 27).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
of the listed impairments (Tr. 30). In doing so, the ALJ specifically considered Listings 1.02 and
1.04. Id.
The ALJ further found that Plaintiff could not return to his past relevant work (Tr. 34) but
determined that he has the residual functional capacity ("RFC") to perform a reduced range of
light exertion, limited to frequent pushing and pulling with the right upper extremity; able to
reach overhead with his bilateral upper extremities if gripping with the right upper extremity is
not required; limited to occasional handling and fingering with the right upper extremity but only
with the assistance of the left upper extremity; never able to climb ladders, ropes, or scaffolds;
limited to occasional crawling; must avoid exposure to vibration and exposure to hazards defined
as industrial machinery, unprotected heights, commercial driving, and similar things (Tr. 30-32).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 33).
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.
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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
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 ofHealth and Human
Services, 667 F.2d 524, 535 (6 1h Cir. 1981), cert. denied, 461 U.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 (6th Cir. 1988).
Finally, this Court must defer to the Commissioner's decision "even ifthere 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 contends that the ALJ's finding of no disability is erroneous because: (1) the
ALJ did not properly consider his nerve damage in formulating the RFC and (2) the ALJ did not
properly consider his psychiatric impairments in formulating the RFC.
C.
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ did not properly consider his nerve damage
in formulating the RFC. He contends that the ALJ did not discuss his radiculopathy and other
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nerve damage in his upper extremities. Yet, the RFC includes significant limitations that are
attributable to Plaintiff's nerve issues in his right upper extremities. Specifically, the RFC
includes limitations of no more than frequent pushing and/or pulling with the right upper
extremity; reaching overhead with his bilateral upper extremities if gripping with the right upper
extremity is not required; and occasional handling and fingering with the right upper extremity
but only with assistance of the left upper extremity (Tr. 30). The ALJ also specifically noted that
at the light level of exertion, Plaintiff was subject to additional functional limitations to
accommodate the limited use of his right upper extremity (Tr. 33). Given that the RFC includes
several limitations pertaining to Plaintiff's right upper extremities, his assertion that the ALJ did
not discuss this impairment is without merit. Further, a review of the medical evidence in the
record supports the ALJ's assessment of Plaintiff's right upper extremities symptoms and her
formulation of the RFC.
Plaintiff's second claim of error is that the ALJ did not properly consider his psychiatric
impairments in formulating the RFC. He argues that these impairments should have deemed to
be "severe" at Step 2.
The Court is mindful of the fact that the Step 2 severity regulation, codified at 20 C.F.R.
§§ 404.1520© and 404.1521, has been construed as a de minim us hurdle and that, in the majority
of cases, "a claim for disability may not be dismissed without consideration of the claimant's
vocational situation". See Higgs v. Bowen, 880 F.2d 860, 862 (6 1h Cir. 1988). However, the
severity requirement is still recognized as a device with which to screen "totally groundless"
claims on the basis of the medical evidence alone. Id. at 863. The pertinent inquiry is whether or
not the impairment is disabling. Id.
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In her analysis at STEP 2, the ALJ acknowledged that Plaintiff claimed that "anxiety"
limited his ability to work. She referred to the medical records in this regard. Plaintiff was
admitted to the psychiatric ward at St. Elizabeth from February 11-18, 2013 (Tr. 269-287).
Plaintiffs admittance to St. Elizabeth resulted from alleged suicidal ideation related to his abuse
of pain medication, with Plaintiff stating, "I am out of control with my narcotics, and I had
thoughts of killing myself' (Tr. 272). Plaintiff's final diagnoses from Rodney E. Vivian, M.D.,
included mood disorder secondary to medical condition, substance induced mood disorder,
chronic pain, and degenerative disc disease (Tr. 274).
In December 2013, Plaintiff attended a consultative psychological examination by James
Rosenthal, Psy.D., at the request of the Social Security Administration (Tr. 399-404). At that
time, Plaintiff reported that he had not had any medications since August 2012 because he could
not afford to pay for them (Tr. 400). Plaintiff reported that he only experienced anxiety after he
stopped working (Tr. 401). Plaintiff reported decreased motivation and frustration due to not
being able to work and not having things to do (Tr. 401-402).
Dr. Rosenthal noted that Plaintiff exhibited a broad affect, did not appear anxious, and appeared
to have adequate knowledge, insight and judgment, and diagnosed Plaintiff with Depressive
Disorder, NOS (Tr. 403). Dr. Rosenthal opined that he did not expect Plaintiff to experience
functional limitations or difficulties in understanding, remembering or carrying out directions on
jobs; maintaining persistence and pace to perform both simple and multi-step tasks; and
responding appropriately to supervision and co-workers. Dr. Rosenthal further opined that it was
not likely that Plaintiff would have difficulty tolerating work pressures (Tr. 403-404).
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State agency psychologists, Laura Cutler, Ph.D., and Jane Brake, Ph.D., reviewed the
records in January 2014 and April 2014, respectively (Tr. 80-81, 103-104). Drs. Cutler and Brake
opined that Plaintiff was subject to mild restriction in his activities of daily living; with mild
difficulties in maintaining social functioning and in maintaining concentration, persistence or
pace. Both Dr. Cutler and Dr. Brake opined that Plaintiffs alleged mental conditions were not
severe with cessation of substance abuse (Tr. 80-81, 103-104).
The ALJ considered these records and opinions and denoted some limitation in the RFC.
The Court finds no error in this regard. A claimant's RFC is assessed by the ALJ between steps
three and four and is "the most [a claimant] can still do despite [his] impairments." 20 C.F.R. §§
404.1520(a)(4), 404.1545(a)(l) & (5). Although there is a limited burden shift to the
Commissioner at step five of the sequential evaluation to identify work existing in significant
numbers in the national economy that a claimant can perform, the claimant retains the burden of
establishing his RFC limitations. While Plaintiff may have had limitations that negatively
affected his ability to work, the mere existence of impairments such as those alleged by Plaintiff,
is insufficient to establish disability under the stringent standards of the Act. Instead, Plaintiff
had to show that his impairments caused functional limitations so severe that he was unable to
engage in any substantial gainful activity for a continuous period of at least 12 months. See
Barnhart v. Walton, 535 U.S. 212, 220 (2002); 42 U.S.C. § 423(d)(l)(A). The disability, not just
the impairment, must last 12 months. Walton, 535 U.S. at 220. In the case before the Court,
Plaintiff has not shown functional limitations of sufficient severity as to be disabling.
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It is within the province of the ALJ to make the legal determination of disability. See
King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). This Court's task is to determine if
substantial evidence supports the ALJ's decision. That there is substantial evidence which could
support an opposite conclusion is of no moment, so long as substantial evidence supports the
conclusion reached by the ALJ. See generally, Jones v. Commissioner of Social Security, 336
F.3d 469 (6th Cir. 2003).
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 Summary Judgment be
SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously
herewith.
This~ayof
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Signed By:
Henry R. Wilhoit. Jr.
United States District Judge
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