Schlett v. SSA
MEMORANDUM OPINION & ORDER: that the Plff's Mtn for S/J be OVERRULED and Dft's Mtn for S/J be SUSTAINED. A judgment in favor of Dft will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 3/21/2017.(AKR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 15-87-HRW
MEMORANDUM OPINION AND ORDER
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
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. 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 fmih herein, finds that the decision of the
Administrative Law Judge is suppo1ied by substantial evidence and should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed her current application for disability insurance benefits on June 19, 2012,
alleging disability beginning on December 31, 2011, due to pain resulting from an injmy to her
left leg, back problems and depression (Tr.289). This application was denied initially and on
reconsideration. Thereafter, upon request by Plaintiff, an administrative hearing was conducted
by Administrative Law Judge Amelia Lombardo (hereinafter "ALJ"), wherein Plaintiff,
accompanied by counsel, testified. At the hearing, William Braunig, a vocational expe1i
(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.
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 impaitments (or impairments) meets or medically
equals a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the
claimant is disabled without further inquity.
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 ifthe claimant's impairment or impai1ments 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
The ALJ issued a decision finding that Plaintiff was not disabled (Tr. 13-31).
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. 15).
The ALJ then determined, at Step 2, that Plaintiff suffers from clu·onic left leg pain,
anxiety, depression, degenerative disc disease of the lumbar spine and substance abuse, which he
found to be "severe" within the meaning of the Regulations (Tr. 15).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
of the listed impairments (Tr. 17).
The ALJ further found that Plaintiff could not return to her past relevant work as a sales
representative (Tr. 29) but dete1mined that she has the residual functional capacity ("RFC") to
perform a range oflight work as defined in 20 C.F.R. § 404. I 567(b) except she could only
frequently stoop, crawl, and climb ramps and stairs; occasionally crouch and operate foot
controls on the left; and never climb ladders, ropes, or scaffolds (Tr. 19-29). Additionally, she
was limited to perfo1111ing simple, repetitive tasks that did not involve assembly line quotas or
which were fast paced; no contact with the general public; and only occasional contact with
coworkers and supervisor (Tr. 19).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 30).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential
The Appeals Council denied Plaintiff's 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 Summaty
Judgment and this matter is ripe for decision.
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. Gamer
v. Heckler, 745 F.2d 383, 387 (6 1h Cir. 1984). If the Commissioner's decision is supported by
substantial evidence, the reviewing Court must affitm. Kirk v. Secretmy 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. Secretmy ofHealth and Human Services, 862 F.2d 1224, 1228 (6 1h 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
Plaintiff's Contentions on Appeal
Plaintiff contends that the ALJ' s finding of no disability is erroneous because: (1) the
ALJ did not properly weigh the opinions of Julie Gerth, D.O. and David Lauffenburger, M.A.
and (2) the ALJ improperly discounted Plaintiffs subjective complaints.
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ did not properly weigh the opinions of Julie
Gerth, D.O. and David Lauffenburger, M.A.
In order to be given controlling weight, the opinions of a treating source on issues
involving the nature and severity of a claimant's impairments must be well supported by
medically acceptable clinical and laboratory diagnostic techniques, and be consistent with other
substantial evidence in the case record. 20 C.F.R. § 416.927(d)(2). The Comt is mindful of the
fact that the Commissioner is not bound by a treating physician's opinion. Such opinions receive
great weight only if they are suppmted by sufficient medical data. Harris v. Heckler, 756 F.2d
431, 435 (61h Cir. 1985).
In May 2012, Plaintiff presented to Julie Ge1th, D.0., with complaints of left buttock and
leg pain (Tr. 412). Dr. Gerth found that Plaintiff had no increased pain with hip motion or
palpation to the leg or buttock; negative straight leg raising tests; no1mal leg ranges of motion;
full (5/5) strength in both legs; and intact neurological functioning (Tr. 412).3 Dr. Gerth
diagnosed unspecified neuralgia, neuritis, and radiculitis and anxiety (Tr. 412) and prescribed
medications (Tr. 413). Later that month, an EMG nerve conduction study showed no evidence of
left lumbosacral motor radiculopathy (Tr. 393). On June 12, 2012, Plaintiff returned to Dr. Getth,
reporting that she did exercises at the beach and was worried that her boyfriend permanently
damaged something when he pulled on her leg six months prior (Tr. 410). Dr. Gerth diagnosed
sciatica (Tr. 410-11). On July 16, 2013, Plaintiff told Dr. Gerth that she undetwent injections
(Tr. 572). She also said she was getting another injection the following day and a nerve
stimulator (Tr. 572). In August 2013, Dr. Gerth said Plaintiff could stand for one hour and sit for
two hours each at one time (Tr. 505). She said she could work for two hours in an eight-hour day
(Tr. 505). She said Plaintiff could lift 10 pounds occasionally and five pounds frequently and
never bend or stoop (Tr. 505). She also said Plaintiff had marked restrictions of activities of daily
living, social functioning, and concentration, persistence, or pace (Tr. 506).
As the ALJ found (Tr. 26), while Dr. Getth said Plaintiff could sit for up to two hours at a
time and stand for up to 60 minutes at a time, she then said, for reasons unexplained, that
Plaintiff could only work for two hours per day (Tr. 505). As the ALJ found, Dr. Gerth's
opinions were inconsistent with her own treatment records (Tr. 26). In May 2012, she found that
Plaintiff had no increased pain with hip motion or palpation to the leg or the buttock; negative
straight leg raising tests; nmmal leg ranges of motion; full (5/5) strength in both legs; and intact
neurological functioning (Tr. 412), making the same or similar findings in June and October
2012 (Tr. 404, 410).
The ALJ also noted that Dr. Gerth's opinions were inconsistent with Plaintiffs own statements
(Tr. 26). For example, in June 2012, Plaintiff told Dr. Ge1th that she "d[id] exercises at the
beach" (Tr. 410) and the following October said she could stand for three hours (Tr. 403).
Finally, the ALJ found Dr. Ge1th's opinion to be inconsistent with the other objective medical
evidence in the record (Tr. 26). For example, in April 2012, Nick Pfleghaar, D.0., found that
Plaintiff had n01mal ranges of motion in her joints, negative straight leg raising tests, and no
neurological deficits (Tr. 416), and made similar findings in June and November 2012 (Tr. 408,
437-38). Also in June 2012, Jahangir Maleki, M.D., found that Plaintiff had "relatively free"
straight leg raising tests (Tr. 431-32). See 20 C.F.R. § 404.1527(c)(4); Norris v. Comm 'r ofSoc.
Sec., 461 F. App'x 433, 439 (6th Cir. 2012) (unpublished) ("Any record opinion, even that ofa
treating source, may be rejected by the ALJ when the source's opinion is not well supported by
medical diagnostics or if it is inconsistent with the record."). Indeed, as the ALJ further found, it
appeared that Dr. Ge1th predominantly based her opinion on Plaintiffs subjective complaints,
which as discussed below, were not consistent with the medical and other evidence. Given the
lack of supp01ting data and other detracting factors, the Court finds that the ALJ did not eJT by
giving Dr. Gerth's opinion only "some" weight as well as adequately articulating her reasons for
AS for Mr. Lauffenburger, Plaintiff presented to him with complaints of depression and
possible PTSD related her back and leg injuries (Tr. 482). Mr. Lauffenburger found that Plaintiff
had fair grooming and hygiene and relevant and goal-directed thoughts, but sad, angty affect, and
severely depressed mood (Tr. 489). Mr. Lauffenburger said Plaintiff had severe depression
related to chronic pain over the prior 14 months following an assault by a man she continued to
live with (Tr. 490). He said she had major depressive disorder (Tr. 491). In June 2013, Mr.
Lauffenburger noted that Plaintiff had a sad, depressed, and angry mood and affect (Tr. 575). A
week later, Mr. Lauffenburger noted that Plaintiff was less anxious and working on staying
"grounded" (Tr. 589). On July 23, 2013,
Mr. Lauffenburger said Plaintiff was unable to work at all and had extreme restrictions on her
activities of daily living and marked difficulties in maintaining social functioning; deficiencies in
concentration, persistence, or pace resulting in failure to complete tasks in a timely manner; and
episodes of deterioration or decompensation in work (Tr. 504). On May 5, 2014, Ms.
Lauffenburger noted that she had depressed mood and affect and discouraged and negative
thought processes (Tr. 578). Plaintiff was hospitalized on May 8, 2014 following intrnsive
thoughts of previous physical abuse and feeling increasingly depressed and overwhelmed (Tr.
In her decision, the ALJ found that Mr. Lauffenburger' s statements were inconsistent
with other evidence in the record (Tr. 27).
Plaintiff also argues that ALJ should have re-contacted Dr. Gerth and Mr. Lauffenburger.
In some situations, the ALJ is under an obligation to seek clarification from a medical source,
when the evidence received from a treating physician or other medical source is insufficient for a
determination of disability, or after weighing the evidence the agency cannot reach a conclusion
about disability. That is not the case here. The ALJ had the benefit of Mr. Lauffenburger's own
office notes (Tr. 482, 489-91, 575, 578, 585, 589), the report of Dr. Morse (Tr. 359-66), and the
opinions ofDrs. Goldsmith (Tr. 85-86) and Bergsten (Tr. 107-23), none of which supported a
finding of disability. Under these circumstances, the ALJ was not required to re-contact Mr.
Lauffenburger or Dr. Gerth.
It is within the province of the ALJ to make the legal determination of disability. The
ALJ is not bound by a treating physician's or other medical sources's conclusmy statement,
particularly where the ALJ dete1mines, as she did in this case, where these is medical proof that
Plaintiff retains the RFC to work in some capacity other than her past work.
See King v.
Heckler, 742 F.2d 968, 973 (6'h Cir. 1984).
To the extent that Plaintiff suggests that the medical evidence is open to another
interpretation that favors her claim, the Court declines to reweigh the evidence in this fashion. If
the Commissioner's decision denying benefits is supported by substantial evidence, as it is here,
the Court must affirm that decision. Longworth v. Commissioner ofSocial Security, 402 F.3d
591, 595 (6'h Cir. 2005). Even if substantial evidence exists to suppmt Plaintiffs claim, the Court
should still affirm the Commissioner's decision because it is suppmted by substantial evidence.
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001); see also Smith v. Chafer, 99 F.3d 780, 782
(6th Cir. 1996) (even if the Court would have decided the matter differently than the ALJ, if
substantial evidence supports the ALJ's decision, it must be affirmed.)
Plaintiffs second claim of error is that the ALJ improperly discounted Plaintiffs
When evaluating a claimant's subjective symptoms, first, an ALJ must consider whether
there is an underlying medically determinable physical or mental impairment(s) that could
reasonably be expected to produce the claimant's pain or other symptoms. Second, once an
underlying impairment(s) that could reasonably be expected to produce the individual's pain or
other symptoms has been shown, an ALJ must evaluate the intensity, persistence, and limiting
effects of the individual's symptoms to determine the extent to which the symptoms limit the
claimant's ability to do basic work activities. See 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL
374186, at *2.5 In so doing, an ALJ considers factors such as the objective medical evidence; the
claimant's activities; the type, dosage, effectiveness, and side effects of any medication the
claimant takes or has taken to alleviate his symptoms; and any other factors concerning the
claimant's functional limitations and restrictions due to his symptoms. See id.
In this case, the ALJ found Plaintiffs subjective complaints to be less than credible. As
the ALJ found, evidence of malingering detracted from Plaintiffs subjective complaints (Tr. 21,
23). In April 2012, Mark Cheney, D.0., noted that Plaintiffs level of pain seemed out of
propottion with the x-ray findings (Tr. 414). See 20 C.F.R. § 404.1529(c)(4) (stating an ALJ
must consider inconsistencies in the evidence); Cole v. Sec'y ofHealth & Human Servs., 820
F.2d 768, 771 (6th Cir. 1987) (claimant exaggerated his complaints of chest symptoms: he
alleged that they occurred at rest, but medical evidence showed that they occurred with activity or
exertion). Further, evidence of Plaintiffs activities was not consistent with her subjective
complaints (Tr. 21), including that she exercised at the beach (Tr. 410). See 20 C.F.R. §
404.1529(c)(3)(I) (stating an ALJ must consider a claimant's activities).
Given the inconsistent and contradict01y evidence, the Court finds the ALJ's assessment
of claimant's credibility to be reasonable and supported by substantial evidence on the record as a
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 Summmy Judgment be
SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously
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