Suter v. SSA
Filing
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MEMORANDUM OPINION AND ORDER: Plaintiffs Motion 10 for Summary Judgment be OVERRULED and the Defendant's Motion 11 for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 9/30/2013. (CBD)cc: COR Modified doc. type on 9/30/2013 (CBD).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
at FRIANKFORT
Civil Action No. 12-59-HRW
J.C. SUTER, JR.,
v.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE
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 Plaintiff s 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,
and being otherwise sufficiently advised, for the reasons set forth herein, 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 on July 8, 2008, alleging disability
beginning on July 22, 2006, due to headaches resulting from head injury (Tr. 177).
This application was denied initially and on reconsideration. On September 9,
2010, an administrative video hearing was conducted by Administrative Law
Judge Cam Oetter (hereinafter "ALJ"), wherein Plaintiff, accompanied by counsel,
testified. At the hearing, George W. Coleman, 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.
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On October 29, 2010, the ALJ issued his decision finding that Plaintiff was
not disabled (Tr. 28-40). Plaintiff was 36 years old at the time of the hearing
decision (Tr. 173). He has a 12th grade education (Tr. 182). His past relevant
work experience consists of work as a press operator, construction worker,
masonry helper, service station mechanic, maintenance man and forklift operator
(Tr. 178).
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.30).
The ALJ then determined, at Step 2, that Plaintiff suffers from borderline
intellectual functioning, lumbar disc disease and headaches which he found to be
"severe" within the meaning of the Regulations (Tr. 30).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or
medically equal any of the listed impairments (Tr. 30).
The ALJ further found that Plaintiff perform his past relevant work as a
press operator (Tr. 38) and also determined that he has the residual functional
capacity ("RFC") to perform light level work, with certain restriction as set forth
in the hearing decision (Tr. 32). The ALJ finally concluded that these jobs exist in
significant numbers in the national and regional economies, as identified by the
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VE (Tr. 38-39).
Accordingly, the ALJ found Plaintiff not to be disabled at Steps
4 and 5 of the sequential evaluation process.
The Appeals Council denied Plaintiff s request for review and adopted the
ALl's decision as the final decision of the Commissioner on July 30,2012 (Tr. 1
6).
Plaintiff thereafter filed this civil action seeking a reversal of the
Commissioner's decision. Both parties have filed Motions for Summary Judgment
[Docket Nos. 10 and 11] and this matter is ripe for decision.
II. ANALYSIS
A.
Standard of Review
The essential issue on appeal to this Court is whether the ALl'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 (6 th 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 (6th Cir. 1981), cert. denied, 461 U.S. 957
(1983). "The court may not try the case de novo nor resolve conflicts in evidence,
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nor decide questions of credibility." Bradley v. Secretary ofHealth and Human
Services, 862 F.2d 1224, 1228 (6 th 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 contends that the ALJ's finding of no disability is erroneous
because: (1) the ALF did not properly evaluate the medical reports and opinions of
Jennifer Wilkes-Deaton and Michael Cecil, Psy.D and (2) the ALJ improperly
concluded that Plaintiff did not meet the requirements for Listing 12.02.
C.
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALF did not properly evaluate the
medical reports and opinions of Jennifer Wilkes-Deaton and Michael Cecil,
Psy.D.
In November 2008, Ms. Wilke-Deaton, a psychological assocuate,
completed an evaluation indicating Plaintiff had marked impairments in his
ability to understand, remember, and follow simple instructions, his ability to
sustain attention and persistence and moderate limitations in his ability to relate
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with others and to adapt or respond to pressures associated with day-to-day stress
(Tr. 308-09).
As a psychological associate, Ms. Wilke-Deaton is not an acceptable
medical source. Acceptable medical sources, per the Regulations, include licensed
physicians, psychologists, optometrists, podiatrists, and speech-language
pathologists. 20 C.F.R. §§ 404.1513(a), 416.913(a). Therefore, as a psychological
associate, Ms. Wilke-Deaton is not an acceptable medical source and it is well
established that only acceptable medical sources can provide medical opinions,
establish the existence of a medically determinable impairment, be considered a
treating source, or be entitled to controlling weight. Social Security Ruling (SSR)
06-03p. However, t he ALl may consider opinions from other sources with
regard the severity of the impairments and how they affect an individual's ability
to function. Id. These opinions are to be considered under the same factors used
to evaluate medical opinions, such that the ALl may consider the qualifications of
the source, the frequency of treatment, consistency of the opinion with other
evidence, how well the source explains the opinion, and other factors when
evaluating both medical and non-medical opinions. Id. Of course, the ALl may
reject an opinion from a non-medical source if it conflicts with that from an
acceptable source.
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In this case, the ALJ considered Ms. Wilke-Deaton's evaluation, gave it
little evidentiary weight, and explained the reasons underlying his determination
(Tr.35). In rejecting the opinions of Ms. Wilke-Deaton and Mr. Cotton, the ALJ
specifically found that (1) Ms. Wilke-Deaton was an "other" sources whose
opinions should be considered but not to the same extent as opinions from an
acceptable medical source; (2) her findings were disproportionate to the medical
evidence; and (3) her opinion was based on Plaintiffs subjective complaints (Tr.
35). Further, her opinion is at odds with the opinions of the state agency
physicians. The Court finds no error in this analysis.
Dr. Cecil conducted a consultative neuropsychological examination of
Plaintiff on April 16, 2010 (Tr. 422-428). The ALJ discounted his findings as
based primarily on Plaintiff's subjective report of his symptoms (Tr. 36). This is
an appropriate basis upon which to discount the opinion from a physician. The
Court finds no error in this regard.
Plaintiff makes much of the ALJ's comment that Dr. Cecil's opinion was
procured not in order to seek treatment but, rather, in an effort to generate
evidence for Plaintiff's workers compensation case. This comment is of no
moment. There is substantial evidence in support of discounting Dr. Cecil's
opinion, to-wit, that it appears to be based on Plaintiff's subjective complaints
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rather than hard data. The Court is mindful that the findings of the ALJ are not
subject to reversal merely because there exists in the record substantial evidence to
support a different conclusion. Even if the evidence could also support another
conclusion, the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached." Alexander v. Apfel,
2001 WL 966284 (6 th Cir. 2001)(citing Buxton v. Halter, 246 F.3d 762,772-73 (6 th
Cir.2001)).
Plaintiffs second claim of error is that the ALJ improperly concluded that
Plaintiff did not meet the requirements for Listing 12.02.
The Sixth Circuit Court of Appeals stated in Her v. Commissioner ofSocial
Security, 203 F .3d 388, 391 (6 th Cir. 1999), "the burden of proof lies with the
claimant at steps one through four of the [sequential disability benefits analysis],"
including proving presumptive disability by meeting or exceeding a Medical
Listing at step three. Thus, Plaintiff "bears the burden of proof at Step Three to
demonstrate that he has or equals an impairment listed in 20 C.F .R. part 404,
subpart P, appendix 1." Arnold v. Commissioner ofSocial Security, 238 F.3d 419,
2000 WL 1909386, *2 (6 th Cir. 2000 (Ky)), citing Burgess v. Secretary ofHealth
and Human Services, 964 F.2d 524, 528 (6th Cir. 1992). If the Plaintiff "can show
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an impairment is listed in Appendix 1 ("the listings"), or is equal to a listed
impairment, the ALJ must find the claimant disabled." Buress v. Secretary of
Health and Human Services, 835 F.2d 139, 140 (6th Cir. 1987).
"The listing of impairments 'provides descriptions of disabling conditions
and the elements necessary to meet the definition of disabled for each
impairment." Arnold, at **2, quoting Maloney v. Commissioner, 211 F.3d 1269,
2000 WL 420700 (6 th Cir. 2000). In order for the Plaintiff "to qualify as disabled
under a listed impairment, the claimant must meet all the requirements specified in
the Listing." Id. This must be done by presenting specific medical findings that
satisfy the particular Listing. Sullivan v. Zebley, 493 U.S. 521, 530-532, (1990).
An impairment that manifests only some of the criteria in a particular Listing, "no
matter how severely, does not qualify." Sullivan, at 530.
Listing 12.02 provides:
Organic Mental Disorders: Psychological or behavioral abnormalities associatec
physical
examination or
laboratory tests demonstrate the presence of a specific organic factor
judged to be etiologically related to the abnormal mental state and
loss of previously acquired functional abilities.
The required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the requirements
in C are satisfied.
A. Demonstration of a loss of specific cognitive abilities or affective
changes and the medically documented persistence of at least one of
the following:
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1. Disorientation to time and place; or
2. Memory impairment, either short-term (inability to learn new
information), intermediate, or long-term (inability to remember
information that was known sometime in the past); or
3. Perceptual or thinking disturbances (e.g., hallucinations,
delusions); or
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional liability (e.g., explosive temper outbursts, sudden
crying, etc.) and impairment in impulse control; or
7. Loss of measured intellectual ability of at least 15 I.Q. points from
premorbid levels or overall impairment index clearly within the
severely impaired range on neuropsychological testing, e.g., the
Luria-Nebraska, Halstead-Reitan, etc.;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration;
OR
C. Medically documented history of a chronic organic mental
disorder of at least 2 years' duration that has caused more than a
minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or psychosocial
support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration;
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or
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change
in the environment would be predicted to cause the individual to
decompensate; or
3. Current history of I or more years' inability to function outside a
highly supportive living arrangement, with an indication of continued
need for such an arrangement.
20 C.F.R. pt. 404, subpt.P, app. 1, § 12.02.
In this case, substantial evidence supports the ALJ's conclusion that
Plaintiffs condition fails to meet the criteria of Listing 12.02. With regard to the
B criteria, there is no evidence in the record that Plaintiff was restricted in his
activities of daily living. Nor does the record support a finding of difficulties in
social functioning, difficulties in concentration, persistence, and pace. For
example, in April 2007, Plaintiffs treating neurologist Dr. Arar noted that mental
Plaintiff had immediate recall of three objects; his calculation ability was intact
for five steps of serial seven; and he could perform three-step commands without
difficulty (Tr. 290). In addition, the state agency psychologists determined
Plaintiff did not have marked limitations in any category of the B criteria (Tr. 324,
371). There is nothing in the record which calls into question these findings.
Nor can Plaintiff satisfy the paragraph C criteria. Both Dr. Stodola and Dr.
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Brake determined the record contained no evidence to establish the presence of
"C" criteria, as they related to various mental impairments (Tr. 325, 372). Here,
the evidence failed to show repeated episodes of decompensation and noted no
evidence of a residual disease process resulting in a marginal adjustment to
Plaintiff s surroundings, or a history of a highly supportive living arrangement.
Thus, the Court finds no error in the ALl's determination that Plaintiffs
impairments do not qualify for presumptive disability pursuant Listing 12.02.
III. CONCLUSION
The Court finds that the ALl'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 30th day of September, 2013.
SrJned BY'
_ R. \Whoit Jr
Unffed States D1strlct JUdgE'
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