Roberts v. SSA

Filing 18

MEMORANDUM OPINION & ORDER : 1. Plaintiff Donna Marie Robertss Letter 12 is CONSTRUED as Plaintiffs Motion for Summary Judgment;2. Plaintiff Robertss Motion for Summary Judgment 12 is DENIED; 3. The Commissioners Motion for Summary Judgment 14 is GRANTED; and 4. Judgment in favor of the Commissioner will be entered promptly. Signed by Judge Gregory F. VanTatenhove on 08/27/2018.(KRB)cc: COR, Donna Marie Roberts via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
COVINGTON
DONNA MARIE ROBERTS,
Plaintiff,
V.
NANCY A. BERRYHILL,
Acting Commissioner Of Social Security,

Defendant.

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Civil No. 2:17-cv-00094-GFVT

MEMORANDUM OPINION
&
ORDER

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Donna Marie Roberts seeks judicial review of an administrative decision of the
Commissioner of Social Security, which denied her claim for disability insurance benefits and
supplemental security income. Ms. Roberts brings this action pursuant to 42 U.S.C. § 405(g),
alleging various errors on the part of the ALJ considering the matter. The Court, having
reviewed the record and for the reasons set forth herein, will DENY Ms. Roberts’s Motion for
Summary Judgment and GRANT the Commissioner’s.
I
A
Plaintiff Donna Marie Roberts initially filed an application for disability insurance
benefits and supplemental security income on January 26, 2011. [Transcript (hereinafter, “Tr.”)
26.] Her application was initially denied on June 8, 2011, and Ms. Roberts did not appeal. Id.
Ms. Roberts filed a second application for disability insurance benefits on March 6, 2014, and
filed an application for supplemental security income on March 7, 2014, alleging disability
beginning May 31, 2013. Id. Both claims were denied on June 16, 2014. Id. Ms. Roberts

requested reconsideration and a hearing. Id. That hearing was held on March 21, 2016, via
videoconference, where she was represented by an attorney. Id. On April 14, 2016,
Administrative Law Judge Andrew G. Sloss returned an unfavorable decision for Ms. Roberts.
Tr. 38. She requested review from the Appeals Council, who denied this request.
To evaluate a claim of disability for supplemental security income benefit claims, an ALJ
conducts a five-step analysis. Compare 20 C.F.R. § 404.1520 (disability insurance benefit
claim) with 20 C.F.R. § 416.920 (claims for supplemental security income). 1 First, if a claimant
is performing a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second,
if a claimant does not have any impairment or combination of impairments which significantly
limit his physical or mental ability to do basic work activities, he does not have a severe
impairment and is not “disabled” as defined by the regulations. 20 C.F.R. § 404.1520(c). Third,
if a claimant’s impairments meet or equal one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1, he is “disabled.” C.F.R. § 404.1530(d). Before moving on to the fourth
step, the ALJ must use all of the relevant evidence in the record to determine the claimant’s
residual functional capacity (RFC), which assess an individual’s ability to perform certain
physical and metal work activities on a sustained basis despite any impairment experienced by
the individual. See 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545.
Fourth, the ALJ must determine whether the claimant has the RFC to perform the
requirements of his past relevant work, and if a claimant’s impairments do not prevent him from
doing past relevant work, he is not “disabled.” 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s

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For purposes of a disability insurance benefits claim, a claimant must show that his impairments were disabling
prior to the date on which his insured status expired. 20 C.F.R. § 404.131. Beyond this requirement, the regulations
an ALJ must follow when analyzing Title II and Title XVI claims are essentially identical. Hereinafter, the Court
provides primarily the citations to Part 404 of the relevant regulations, which pertain to disability insurance benefits.
Parallel regulations for supplemental security income determinations may be found in Subpart I of Part 416.

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impairments (considering his RFC, age, education, and past work) prevent him from doing other
work that exists in the national economy, then he is “disabled.” 20 C.F.R. § 404.1520(f).
Through step four of the analysis, “the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is precluded from
performing her past relevant work.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.
2003). At step five, the burden shifts to the Commissioner to identify a significant number of
jobs that accommodate the claimant’s profile, but the claimant retains the ultimate burden of
proving his lack of residual functional capacity. Id.; Jordan v. Comm’r of Soc. Sec., 548 F.3d
417, 423 (6th Cir. 2008).
At the outset of this case, the ALJ determined that Ms. Roberts meets the insured status
requirements of the Social Security Act through September 30, 2018. Tr. 28; see also 20 C.F.R.
§ 404.131. Then, at step one, the ALJ found Ms. Roberts had not engaged in substantial gainful
activity since the alleged onset date of May 31, 2013. Tr. 28. At step two, the ALJ found Ms.
Roberts to suffer from lumbar degenerative disc disease. Id. at 29. At step three, the ALJ
determined her impairments did not meet or medically equal one of the listed impairments in 20
C.F.R. Part 404 or Part 416. Id. at 30. Before moving on to step four, the ALJ considered the
record and determined that Ms. Roberts possessed the following residual functioning capacity:
“[Ms. Roberts] has the residual functional capacity to perform light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b) except she can occasionally climb ramps or stairs.” Id. The ALJ
determined at step four that Ms. Roberts was capable of performing past relevant work as an
administrative work, as that occupation did not require the performance of work-related activities
precluded by her RFC. Id. at 39. Accordingly, the ALJ found at step five that Ms. Roberts has
not been under a disability from May 31, 2013, through the date of the decision. Id. at 38.

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Ms. Roberts filed this action for review on June 8, 2017. [R. 2.] Pursuant to the Court’s
Standing Order, Ms. Roberts had until Friday, January 12, 2018, to file her motion for summary
judgment. [R. 11.] On April 10, 2018, Ms. Roberts sent a letter to the Court, requesting
additional time to file her motion because she was unable to locate an attorney. [R. 12.] This
letter also included arguments as grounds for relief from the ALJ’s decision. Id. The Court
granted her an additional sixty days, advising her that she had no right to counsel and could
proceed pro se in this matter. [R. 13.] On July 12, 2018, Ms. Roberts moved again for an
extension of time. [R. 16.] The Court granted her request, giving her until Monday, August 13,
2018, to file her motion for summary judgment. [R. 17.]
At this time, Ms. Roberts has still not filed her motion for summary judgment, but she did
file a letter outlining her arguments for relief. [R. 12.] The Commissioner has also filed a
motion for summary judgment addressing the arguments Ms. Roberts made in her letter. [R. 15.]
Accordingly, the Court construes Ms. Roberts’s letter as a motion for summary judgment.
Courts generally apply a less stringent standard to pleadings made by pro se litigants. See
Pilgram v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Jourdan v. Jabe, 951 F.2d 108, 110 (6th
Cir. 1991).
B
The Court’s review is generally limited to whether there is substantial evidence in the
record to support the ALJ’s decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611,
614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319–20 (6th Cir. 1987). “Substantial
evidence” is “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) (citing Richardson v. Perales,

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402 U.S. 389, 401 (1971)). The substantial evidence standard “presupposes that there is a zone
of choice within which [administrative] decision makers can go either way, without interference
by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler,
730 F.2d 1147, 1150 (8th Cir. 1984)).
To determine whether substantial evidence exists, courts must examine the record as a
whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
(6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a reviewing court may not
conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations.
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec’y of
Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the ALJ’s decision is
supported by substantial evidence, it must be affirmed even if the reviewing court would decide
the matter differently, and even if substantial evidence also supports the opposite conclusion.
See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Her v.
Comm’r of Soc. Sec., 203 F.3d 388, 389–90 (6th Cir. 1999).
II
Construing Ms. Roberts’s filing liberally, Ms. Roberts presents two arguments to this
Court as grounds for relief from the ALJ’s unfavorable decision. Specifically, she argues (1) the
ALJ erred by holding her hearing via videoconference and (2) the ALJ did not give sufficient
weight to the opinion from her treating nurse practitioner. For the reasons set forth below, Ms.
Roberts’s arguments do not warrant a reversal of the ALJ’s determination.
A
First, Ms. Roberts argues that the hearing should not have been held via videoconference,
and she was prejudiced by such an arrangement. [R. 12.] Ms. Roberts and her attorney appeared

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in Cincinnati, Ohio, while the ALJ conducted the hearing from Flint, Michigan. Tr. 26. Prior to
her hearing, on December 29, 2015, Ms. Roberts received a notice that her hearing would be held
via videoconference. Id. at 216–17. While Ms. Roberts may have wished to appear before an
ALJ in person, she has not demonstrated she was harmed by appearing via videoconference. [R.
12.] Furthermore, neither Ms. Roberts nor her attorney objected to the videoconference at the
hearing. Tr. 48 (“I do not [have any objection], Your Honor. Thank you.”). In order to set aside
the ALJ’s order, Ms. Roberts must demonstrate both that the ruling was erroneous and
prejudicial. Shinseki v. Sanders, 556 U.S. 396, 408–09 (2009). Here, even if the decision to
hold the hearing via videoconference was erroneous, Ms. Roberts still received a full and fair
hearing before a disinterested ALJ, and she has not indicated that her rights were affected at all
by this arrangement. Thus, the ALJ’s decision to hold the hearing via videoconference is not
grounds for reversal or remand.
B
Next, Ms. Roberts claims the ALJ gave insufficient weight to the opinion of her treating
nurse practitioner, Angele Franke. [R. 12.] The Social Security Administration has set forth
certain guidelines that an ALJ must follow when determining how much weight to assign a
treating medical source. The regulations provide:
If we find that a treating source's opinion on the issue(s) of the nature and severity
of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight. When we do not
give the treating source's opinion controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in paragraphs
(d)(3) through (d)(6) of this section in determining the weight to give the opinion.
We will always give good reasons in our notice of determination or decision for the
weight we give your treating source's opinion.

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20 C.F.R. § 404.1527(c)(2). Other factors which must be considered when the treating source
opinion is not given controlling weight include the length of the treatment relationship, the
frequency of examination, the nature and extent of the treatment relationship, the supportability
of the opinion, the consistency of the opinion with other evidence in the record, and whether the
treating source is a specialist. 20 C.F.R. §§ 404.1527(c)(2)(i)–(ii), (c)(3)–(5); 416.927(c)(2)(i)–
(ii), (c)(3)–(5).
The regulations also contain a clear procedural requirement that an ALJ must give “good
reasons” for discounting a treating physician's opinion, specific enough “to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion
and the reasons for that weight.” 20 C.F.R. §§ 1527(c)(2), 416.927(c)(2); Social Security Ruling
(“SSR”) 96-2, 1996 WL 374188, at *5 (July 2, 1996). The purpose of the reason-giving
requirement is to allow “claimants to understand the disposition of their cases, particularly where
a claimant knows that his physician has deemed him disabled and therefore might be bewildered
when told by an administrative bureaucracy that she is not, unless some reason for the agency's
decision is supplied.” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (cleaned up). In
addition, the requirement “ensures that the ALJ applies the treating physician rule and permits
meaningful appellate review of the ALJ's application of the rule.” Id. Failure to follow the
procedural requirement denotes a lack of substantial evidence, even where the ALJ's conclusion
may otherwise be justified on the record. Id. at 546.
The ALJ’s written opinion explains he gave little weight to Nurse Angele Franke’s
opinion because he found it inconsistencies within the opinion as well as with other opinions.
Tr. 37. Nurse Franke opined that Ms. Roberts had extreme mental limitations, but also gave her a
Global Assessment Functioning score that equated only to moderate limitations. Id. at 965–67.

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Furthermore, Nurse Franke’s opinion was inconsistent with the examinations done by Dr.
Guerrero and Dr. Dennard. Id. at 37. Also, while Nurse Franke described Ms. Roberts’s anxiety
and depression as severe, Ms. Roberts provided no medical records indicating emergency
services or psychiatric hospitalizations related to mental illness. Id. While Nurse Franke has
familiarity with Ms. Roberts’s situation, an ALJ generally gives more weight to the opinion of a
specialist, such as Dr. Guerrero or Dr. Dennard, about medical issues related to his or her
specialty, in this case, psychiatry. 20 C.F.R. § 404.1527(c)(2)(5). An opinion from a nurse or
nurse practitioner is entitled to less weight than a physician’s opinion, and the ALJ has discretion
to determine the proper weight to accord such opinions. Meuzelaar v. Comm’r of Soc. Sec., 648
F. App’x 582, 584 (6th Cir. 2016); Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540–41 (6th Cir.
2007).
Furthermore, even if substantial evidence supports the opposite conclusion, a reviewing
Court must affirm the Commissioner’s decision if the decision is supported by substantial
evidence. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012); Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389–90
(6th Cir. 1999). While Nurse Franke’s opinions may support Ms. Roberts’s position, the ALJ
included substantial evidence for his decision to assign limited weight to Nurse Franke, and the
records of Drs. Guerrero and Dennard support the ultimate determination of the ALJ. The Court
may not resolve conflicts of evidence or make credibility determinations in reviewing the ALJ.
Ulman, 693 F.3d at 713; see also Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224,
1228 (6th Cir. 1988).

Because of this, the Court does not find the ALJ’s decision to assign little

weight to Nurse Franke’s opinion to be grounds for reversal or remand.

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III
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED
as follows:
1.

Plaintiff Donna Marie Roberts’s Letter [R. 12] is CONSTRUED as Plaintiff’s

Motion for Summary Judgment;
2.

Plaintiff Roberts’s Motion for Summary Judgment [R. 12] is DENIED;

3.

The Commissioner’s Motion for Summary Judgment [R. 14] is GRANTED; and

4.

Judgment in favor of the Commissioner will be entered promptly.

This the 27th day of August, 2018.

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