Chapman v. SSA
Filing
22
MEMORANDUM OPINION & ORDER: That Plaintiff's motions for summary judgment(DE 18 and 19 ) be, and the same hereby are, DENIED and the Commissioner's motion for summary judgment (DE 21 ) be, and the same hereby is, GRANTED. A separate judgment in conformity herewith shall this date be entered. Signed by Judge Joseph M. Hood on 9/12/2018.(ECO)cc: COR w/copy to Kenny R. Chapman, pro se, at address listed on the docket sheet via U.S. Mail.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
KENNY R. CHAPMAN,
)
)
Plaintiff,
)
)
V.
)
)
Nancy A. Berryhill, Acting
)
Commissioner of Social Security, )
)
Defendant.
)
Civil No. 2:17-CV-112
MEMORANDUM OPINION AND ORDER
****
Kenny R. Chapman 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 denying his claim for
disability insurance benefits (DIB).
The Court, having reviewed
the record, will AFFIRM the Commissioner’s decision as it is
supported by substantial evidence.
I.
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
Health
(6th
&
Human
Servs.,
25
F.3d
284,
286
Cir.
1994).
“Substantial evidence” is defined as “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.”
Id.
Courts are not to conduct a de novo review,
resolve
conflicts
determinations.
Id.
in
the
evidence,
or
make
credibility
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 substantial
evidence standard “allows considerable latitude to administrative
decision makers” and “presupposes that there is a zone of choice
within which the [decision makers] can go either way, without
interference by the courts.” Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation and internal quotations omitted). “The
substantial evidence standard is met if a reasonable mind might
accept the relevant evidence as adequate to support a conclusion.”
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(citation and internal quotations omitted).
The ALJ, in determining disability, conducts a five-step
analysis.
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.
As
to the last step, the burden of proof shifts from the claimant to
the Commissioner.
Id.; see also Preslar v. Sec’y of Health & Human
Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
In August 2013, Plaintiff applied for disability insurance
benefits (DIB), alleging disability beginning in April 2013, due
to a litany of physical and mental conditions (Administrative
Record (Tr.) 123, 316, 390). His application was denied and he
pursued
and
exhausted
his
administrative
remedies
(Tr.
1-7
(Appeals Council denial of review), 123-35 (administrative law
judge
(ALJ)
decision),
167-96
(ALJ
hearing),
233-36
(initial
denial), 239-41 (reconsideration denial)). This case is ripe for
review. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981.
A. Medical Evidence, Work History, and Hearing Testimony
In May 2013, just after his alleged onset of disability,
Plaintiff followed up at Health Point to have earwax and skin
lesions removed (Tr. 635). He had no other complaints (Tr. 634).
There is no evidence that he received additional treatment at
Health Point until March 2014 (Tr. 667). In the meantime, he was
seen in the emergency department. In July 2013, he was “rambling
about illogical stories” in the emergency room (Tr. 580). On
admission, he was diagnosed with a mood disorder and assigned a
global assessment of functioning (GAF) score of 30 (Tr. 581),
indicating that his behavior was influenced by delusions or that
he had a serious impairment in communication or judgment or an
inability to functioning almost all areas. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.
text revision 2000). Rodney Vivian, M.D., noted that he was
“avoidant,
spen[t]
most
of
his
days
in
bed,
refuse[d]
to
participate in any kind of problem solving or goal setting and is
focused on getting his needs met by other people” (Tr. 583-84).
When it became clear that his “family was not going to provide
housing, [he] requested discharge” (Tr. 584). On discharge, he was
diagnosed with a mood disorder and a personality disorder with
dependent features and assigned a GAF of 60, indicating moderate
symptoms or functional limitations (Tr. 584). See id.
Throughout 2015 Plaintiff was seen occasionally for headaches
and mood disorders (Tr. 780-84, 952-62).
Plaintiff noted at one
visit that his short-term goal was a “complete assessment to help
with his disability claim.” (Tr. 826). Plaintiff’s medical records
reflect that he asked his therapist to “lie and say he is too ill
to live on his own.”
(Tr. 902).
The same therapist diagnosed
Plaintiff with “malingering.” (Tr. 904).
Plaintiff (represented by an attorney at the time), testified
at the July 2016 hearing that he stopped working in April 2013,
but returned to work from January until November 2014 doing
temporary tax work earning $12,377.93 (Tr. 174, 363). He worked
again in 2015 doing temporary tax work through October of that
year, earning $11,627.27 (Tr. 175-76, 185, 363). He also worked
the month of January 2016, the month of April 2016, and a week in
June 2016 (Tr. 177).
Plaintiff testified that he had experienced daily migraine
headaches since 1997 (Tr. 179). According to Plaintiff, for “[a]
few years at least,” his headaches had been so bad he could not
tolerate them even with medication, but he would just force himself
to go to work (Tr. 179-80). He also testified that he had problems
with anxiety since he was in college, which got worse in 2013 (Tr.
180). Nevertheless, he was able to force himself to continue to
work (Tr. 180-81). According to Plaintiff, he has thoughts of
suicide, but has never attempted to kill himself (Tr. 181).
Plaintiff then told the ALJ that, even though he had worked for
significant periods of time since he became disabled, he believed
he could not work because of his fatigue (Tr. 183).
Based on this evidence in the record and testimony at the
hearing, The ALJ found that although Plaintiff could not perform
his past work, he had no exertional impairments, but was limited
to simple, low-stress work with limited social interaction and the
ability to be off-task 10 percent of the time and absent one day
per month (Tr. 128, 133-34).
B. ALJ’s Finding that Plaintiff Engaged in Substantial Gainful
Employment
Plaintiff admits he worked after the alleged disability onset
date.
Plaintiff challenges the ALJ’s consideration of the fact
that he worked after his alleged onset of disability because while
“I did some substantial gainful work . . . but again, on and off
. . . NOT THE ENTIRE TIME” (DE 19, Pl. Br. at 3, 5, and 8).
Plaintiff bears the burden of proving he is disabled, i.e., that
is incapable of working for at least 12 consecutive months, 20
C.F.R. § 404.1505, including proving that he was not engaged in
substantial gainful activity (SGA). 20 C.F.R. § 404.1520(a)(4)(i);
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). There was no 12
consecutive-month period that Plaintiff was not engaged in SGA.
While he did not work from April until December 2013, he began
working in January 2014 and engaged in SGA until October 2014 (Tr.
174, 363). Plaintiff then worked again at SGA levels from January
until October 2015 (Tr. 175-76, 185, 363). The ALJ’s determination
that Plaintiff was engaged in SGA was supported by Plaintiff’s own
admissions and the uncontroverted evidence in the record. Although
the ALJ went on to Step Two of the analysis, it was not necessary
to do so.
The ALJ could have properly denied the claim at Step
One based on Plaintiff’s SGA.
C. ALJ’s consideration of Plaintiff’s Back Pain, Headaches,
Mental Impairments, and Fatigue
Plaintiff challenges the ALJ’s consideration of his back
pain, headaches, mental impairments, and fatigue.
The Court can
easily dispose of each of these claims.
There was no evidence of back problems in the record before
the
ALJ
from
2013
onward,
and
Plaintiff’s
attorney
conceded
Plaintiff “did not have any recent evidence for back problems.”
(Tr. 126 and 195).
The ALJ also observed that, in 2013, Plaintiff
had a normal range of motion and normal muscle tone (Tr. 126, see
Tr. 599). And in 2015, Plaintiff had normal strength, normal muscle
tone, normal gait, and intact sensation (Tr. 126, see Tr. 784).
Thus, the ALJ’s decision that Plaintiff’s back impairment is not
medically determinable was supported by substantial evidence.
Plaintiff next challenges the ALJ’s consideration of his
headaches (Pl. Br. at 4, 8). The ALJ found that migraine headaches
were a severe impairment (Tr. 126). But as the ALJ observed (Tr.
129), Plaintiff claims to have had migraine headaches since 1997,
but nevertheless worked with them (Tr. 179). Moreover, while
Plaintiff claimed to have a migraine headache every day during the
relevant time period, Plaintiff worked at SGA 20 out of the 40
months he claimed to be disabled (Tr. 174-75, 363). Given this
evidence, the ALJ reasonably found Plaintiff’s claims of disabling
headaches to be inconsistent with the record as a whole.
Regarding Plaintiff’s mental condition, the ALJ considered
that
Plaintiff’s
own
therapist
raised
serious
concerns
about
Plaintiff’s veracity and motives in her treatment notes (Tr. 129,
see Tr. 902 and 904).
Under the Commissioner’s regulations in
effect at the time of the ALJ’s decision, the ALJ was required to
consider his activities of daily living in assessing his mental
impairments.
20
C.F.R.
§
404.1520a(c)(3)
(2016).4
The
ALJ
reasonably concluded that Plaintiff had only a mild limitation in
his activities of daily living: his activities were fairly normal,
he ran errands, went to stores and the library, ate dinner,
maintained his hygiene, and worked (Tr. 127, 402).
Plaintiff also challenges the ALJ’s decision because the ALJ
noted that Plaintiff used to see a psychiatrist and take medication
for depression, but had not for several years, because he started
seeing a psychiatrist in 2017 (Pl. Br. at 7). But that this
evidence was never submitted to the agency (see Doc. 19-1 at 712, see also Doc. 18) and does not qualify for remand under
sentence six, as Plaintiff has not shown how such evidence, dated
more than a year after the ALJ’s decision, is material such that
it justified remand under sentence six of 42 U.S.C. § 405(g).
Plaintiff challenges the ALJ’s consideration of the fact that
he graduated college with a bachelor’s degree (Pl. Br. at 9-10).
This was a relevant consideration, because, as Plaintiff concedes,
he had his longstanding mental impairments at the same time he was
able to graduate with his bachelor’s degree. This fact—and the
fact that he continued to work despite these impairments—shed light
on
how
functional
Plaintiff
was
despite
his
impairments
and
supports the ALJ’s decision that he could perform the minimal
mental demands of unskilled work.
The ALJ’s decision regarding
Plaintiff’s mental impairments was well-supported by the evidence
in the record.
Finally, Plaintiff challenges the ALJ’s consideration of his
fatigue (Pl. Br. at 6). However, there is no indication that
Plaintiff sought treatment for fatigue or was diagnosed with
fatigue during the relevant time period, other than Plaintiff’s
self-reports of a history of fatigue (Tr. 583-84, 597, 634, 66365, 667, 722-24, 737-39, 749-52, 764-68, 780-84, 823).
The ALJ accounted for Plaintiff’s mental impairments and
headaches by limited him to simple, low-stress work, with limited
social contact that permitted him to be off-task 10 percent of the
day and absent one day per month (Tr. 128, 133).
Plaintiff has
not shown that his claimed limitations from fatigue or back pain
are in excess of the ALJ’s already-restrictive residual functional
capacity.
III.
The Court having found no legal error on the part of the ALJ
and that his decision is supported by substantial evidence, the
Acting Commissioner’s final decision is AFFIRMED.
Accordingly,
IT IS ORDERED that Plaintiff’s motions for summary judgment
(DE 18 and 19) be, and the same hereby are, DENIED and the
Commissioner’s motion for summary judgment (DE 21) be, and the
same hereby is, GRANTED.
A separate judgment in conformity herewith shall this date be
entered.
This the 12th day of September, 2018.
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