Nickels v. SSA
MEMORANDUM OPINION & ORDER: IT IS ORDERED that Pla's 9 MOTION for Summary Judgment is OVERRULED and Dft's 10 MOTION for Summary Judgment be SUSTAINED; A Judgment in favor of Dft will be entered contemporaneously. Signed by Judge Henry R. Wilhoit, Jr on 8/8/2011.(GLD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. lO-293-HRW
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE
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 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.
II. FACTUAL BACKGROUND AND PROCEDURAL mSTORY
Plaintiff filed his current application for disability insurance benefits and
supplemental security income benefits on April 25, 2007, alleging disability
beginning on March 1, 2007, due to his inability to read or write and his high
blood pressure (Tr. 136). This application was denied initially and on
reconsideration (Tr. 48-51). On November 12,2009, an administrative hearing
was conducted by Administrative Law Judge Gregory Varo (hereinafter "ALJ"),
wherein Plaintiff, accompanied by counsel, testified. At the hearing, Betty Hale, a
vocational expert (hereinafter "VB"), 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
Step 1: If the claimant is performing substantial gainful work, he is not
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
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.
On December 4,2009, the ALJ issued his decision finding that Plaintiff was
not disabled (Tr. 12-21).
Plaintiff was 43 years old at the date of alleged onset and 46 years old at the
time of the hearing decision (Tr. 19). He has a lOth grade education but claims to
be illiterate (Tr. 140). His past relevant work experience consists of work as a
cable installer / pole climber and farm laborer (Tr. 19).
At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since June 1,2007 (Tr. 14).
The ALJ then determined, at Step 2, that Plaintiff suffers from hypertension,
early degenerative changes L5-S 1 with back pain, learning disorder with current
testing at the mild mental retardation level, which he found to be "severe" within
the meaning of the Regulations (Tr. 14-15).
At Step 3, the ALJ found that Plaintiffs impainnents did not meet or
medically equal any of the listed impainnents (Tr. 15). In doing so, the ALJ
specifically considered listings 1.04,4.00, 12.02 and 12.05 (Tr. 15-17).
The ALJ further found that Plaintiff could not return to his past relevant
work (Tr. 19) but determined that he has the residual functional capacity ("RFC")
to perform a range of medium work with certain restrictions as set forth in the
hearing decision (Tr. 19-21).
The ALJ [mally concluded that these jobs exist in significant numbers in
the national and regional economies, as identified by the VB (Tr. 20).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential
The Appeals Council denied Plaintiffs request for review and adopted the
ALl's decision as the final decision of the Commissioner on July 6, 2010 (Tr. 1-5).
Plaintiff thereafter filed this civil action seeking a reversal of the
Commissioner's decision. Both parties have filed Motions for Summary Judgment
[Docket Nos. 9 and 10] and this matter is ripe for decision.
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). lfthe Commissioner's decision is supported by
substantial evidence, the reviewing Court must affrrm. 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,
nor decide questions of credibility." Bradley v. Secretary ofHealth and Human
Services, 862 F.2d 1224, 1228 (6th 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
Plaintiff's Contentions on Appeal
Plaintiff contends that the ALl's decision is erroneous because (1) the ALJ
gave insufficient weight to the opinion of Andrew Jones, Ph.D.; (2) the ALJ did
not find that his impairments meet or equal Section 12.05, the Listing for mental
retardation; (3) the ALJ did not consider his impairments in combination; (4) the
ALJ improperly assessed his credibility and (5) the ALJ did not consider the
durational requirement of "substantial gainful activity."
Analysis of Contentions on Appeal
THE ALJ PROPERLY WEIGHED THE OPINION OF
PSYCHOLOGICAL CONSULTATIVE EXAMINER ANDREW
Plaintiffs first claim of error is that the ALJ gave insufficient weight to the
opinion of Andrew Jones, Ph.D.
The opinions of a consultative examiner are evaluated just as any other
medical opinion, taking into account the consultant's specialty, the supporting
evidence and explanations and any other factors. 20 C.F.R. §§ 404. 1527(f),
416.927(f). The regulations, however, do not require the ALJ to set forth the
weight given to the medical opinion of a one-time examiner or give reasons for
In this case, Dr. Jones conducted a comprehensive examination of Plaintiff
in July 2007 (Tr. 239-48). He administered numerous psychological tests,
including an IQ test (Tr. 239). The ALJ noted his findings that Plaintiff had a
verbal scaled IQ of 60, a performance scaled IQ of 74, and a full scaled IQ of 63
(Tr. 15,243). He also noted Dr. Jones' diagnosis of learning disorder and mild
mental retardation, and that he assessed a GAF score of 45 (Tr. 15, 247). The ALJ
noted his opinion that Plaintiff did not presently possess the mental skills and
coping mechanisms to adapt or respond to pressures normally found in the work
place (Tr. 15, 248). The ALJ incorporated Dr. Jones' finding of impaired stress
tolerance into the RFC and included understanding and remembering short, simple
instructions, a low pressure work environment, and no tasks requiring reading,
writing or math skills (Tr. 17,248). The ALJ also adopted Dr. Jones' assessment
of Plaintiff's ability to consistently interact with friends, supervisors and the
public, the ALJ found that he had no limitations in the area of social functioning
(Tr. 16, 248). He also cited his assessment that Plaintiff could understand,
remember, and carry out short, simple instructions and maintained concentration,
persistence, and pace during the consultative examination and found that Plaintiff
had moderate limitations in the area of concentration, persistence, and pace (Tr.
Plaintiff maintains that Dr. Jones' finding that he could not respond to
workplace pressures indicated he was disabled and mandated a decision in his
favor. However, an opinion on whether a claimant is disabled is reserved to the
Commissioner because it is dispositive and would direct the determination of
disability. 20 C.F.R. §§ 404. 1527(e), 416.927(e); see SSR 96-5p, 1996 WL
374183 (S.S.A.). As the Sixth Circuit has stated, "[t]he determination of disability
is ultimately the prerogative of the Commissioner, not the treating physician."
Warner v. Commissioner o/Social Security, 375 F.3d 387, 390 (6th Cir. 2004).
Accordingly, the opinion of Dr. Jones, who was not even a treating physician, on
Plaintiffs inability to respond to workplace pressures, was merely one factor the
ALJ had to consider.
Plaintiff makes much of Dr. Jones' finding that he had a GAF score of 45.
Pl.'s Br. at 3. Yet, it is well established that GAF score may have little or no
bearing on an individual's functioning. The American Psychiatric Ass 'n,
Diagnostic & Statistical Manual o/Mental Disorders,(4th ed. 2000) (DSM-IV
TR). Plaintiffs particular GAF on the date of a particular examination simply was
a reflection of his functioning on that day, and not necessarily an indication that he
was disabled within the meaning of the Act. The GAF score did not indicate that
Plaintiff had noteworthy limitations that lasted for any relevant length of time. 20
C.F.R. §§ 404.1505(a), 404.1509, 416.905(a), 416.909 (impairment must last at
least 12 months).
The Court having reviewed the record, finds no error in the ALl's
consideration of Dr. Jones' opinion.
SL1BSTANTIAL EVIDENCE SUPPORTS THE
ALI'S FINDING THAT PLAINTIFF'S IMPAIRMENTS DID NOT
MEET OR EQUAL THE LISTING FOR MENTAL
Plaintiff s second claim of error is that the ALI did not fmd that his
impairments meet or equal Section 12.05, the Listing for mental retardation.
The Sixth Circuit Court of Appeals stated in Herr v. Commissioner o/Social
Security, 203 F.3d 388,391 (6th 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 I." Arnold v. Commissioner o/Social Security, 238 F.3d 419,
2000 WL 1909386, *2 (6th Cir. 2000 (Ky)), citing Burgess v. Secretary o/Health
and Human Services, 964 F.2d 524, 528 (6th Cir. 1992). If the Plaintiff "can show
an impairment is listed in Appendix 1 ("the listings"), or is equal to a listed
impairment, the ALI 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, 2000 WL 420700 (6th Cir. 2000) at **2, quoting Maloney v.
Commissioner, 211 F.3d 1269. 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. (emphasis added). 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. In
other words, it is insufficient for a claimant to almost meet the requirements of a
listed impairment. See, Dorton v. Heckler, 789 F.2d 363,367 (6 th Cir. 1986)
Listing 12.05 provides in pertinent part:
12.05 Mental retardation: Mental retardation refers to
significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before
The required level of severity for this disorder is met when the
requirements in A, B, C or De are satisfied.
Subpart C requires:
A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05.
The Court is mindful of the introductory material to the mental disorders
listings which serves to clarify Listing 12.05:
The structure of the listing for mental retardation (12.05)
is different than that of other mental disorders listings.
Listing 12.05 contains an introductory paragrapgh with a
diagnostic description for mental retardation. It also
contains four sets of criteria (paragraphs A through D).
If the impairment satisfies the diagnostic description in
the introductory paragrapgh and anyone of the four sets
of criteria, [the Commissioner] will find that the
impairment meets the listing.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00 A (emphasis added).
In this case, although Plaintiff had IQ scores which fell within the
prescribed range (Tr. 244), the record does not set forth deficits in adaptive
functioning, as required by the Listing. Plaintiff s employment history belies any
contention of such deficits, as he was able to maintain full-time employment. In
addition, the evidence of his daily activities including household chores, further
establishes adaptive functioning, rather than any deficits in that regard.
The Court, having reviewed the record, finds that the record contains
substantial evidence to support the ALl's finding that Plaintiff's impairment did
not meet or equal Listing 12.05. Given the contradictory evidence, the ALl's
assessment was reasonable. While, arguably, there may be some evidence to the
contrary, a Court should affIrm the ALl'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 ALI." Foster v.
Halter, 279 F.3d 348,353 (6th Cir. 2001). See also, Casey v. Secretary o/Health
and Human Services, 987 F.2d 1230, 1235 (6th Cir. 1993).
THE ALI PROPERLY CONSIDERED ALL OF
PLAINTIFF'S IMPAIRMENTS IN COMBINATION.
Plaintiffs third claim of error is that the ALI did not consider his
impairments in combination.
A review of the hearing decision reveals that the ALI considered Plaintiff s
impairments in combination at various stages in his evaluation. The ALI
discussed Plaintiffs impairments, both physical and mental, both severe and non
severe, at Step 3 of the sequential evaluation process, and specified that he
considered the same, alone and "in combination" (Tr. 15). Such articulations
have been found to be sufficient upon review. See Gooch v. Secretary ofHealth
and Human Services, 833 F.2d 589, 592 (6th Cir. 1987). Indeed, the Sixth Circuit
Court of Appeals stated in Loy v. Secretary ofHealth and Human Services, "[a]n
ALI's individual discussion of multiple impairments does not imply that he failed
to consider the effect of the impairments in combination, where the ALI
specifically refers to a 'combination of impairments' in finding that the plaintiff
does not meet the listings." Loy v. Secretary ofHealth and Human Services, 901
F.2d 1306, 1310 (6th Cir. 1990). The Court finds that the ALI's approach in this
case passes Gooch and Loy muster and that Plaintiff s argument in this regard is
Moreover, Plaintiff has not explained in what way the ALI failed to
consider the combined effect of his impairments. Nor has he articulated which
condition(s) cause additional limitations on his ability to work. "[I]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to ... put flesh on its
bones." McPherson v. Kelsey, 125 F.3d 989,995-996 (6th Cir. 1997) (citations
omitted); United States v. Phibbs, 999 F.2d 1053, 1080 n. 12 (6th Cir. 1993)(noting
that "it is not our function to craft an appellant's arguments").
THE ALJ WAS SUPPORTED BY SUBSTANTIAL
EVIDENCE IN HIS CREDffiILITY
Plaintiffs fourth claim of error is that the ALJ improperly assessed his
It is well established that as the "ALJ has the opportunity to observe the
demeanor of a witness, (her) conclusions with respect to credibility should not be
discarded lightly and should be accorded deference." Hardaway v. Secretary of
Health and Human Services, 823 F.2d 922,928 (6 th Cir. 1987). Upon review, this
Court is limited to evaluating whether or not the ALJ's explanations for partially
discrediting the Plaintiff are reasonable and supported by substantial evidence in
The ALJ found that Plaintiff was not credible in his assertion that his
impairments precluded him from all full-time work activity. Indeed, no physician
of record suggested that Plaintiff was incapable of performing any work activity.
The ALJ also found that despite allegations of disabling impairments,
Plaintff engages in a wide variety of household and other daily activities.
Plaintiff s wife stated that he performs household chores, including cleaning,
laundry and yard work (Tr. 164). The Sixth Circuit Court of Appeals has stated
that "[a]n ALJ may consider household and social activities engaged in by the
claimant in evaluating a claimant's assertions of pain or ailments." Walters v.
Commissioner of Social Security, 127 F.3d 525, 532 (6 th Cir. 1997).
Given the lack of evidence in support of Plaintiff s allegations, the Court
finds the ALJ's assessment of claimant's credibility to be reasonable and
supported by substantial evidence on the record as a whole.
THE ALJ'S DETERMINATION THAT PLAINTIFF WAS NOT
DISABLED CONSTITUTED A FINDING THAT HE COULD
WORK A FULL-TIME JOB.
Finally, Plaintiff contends that the ALJ did not consider the durational
requirement of "substantial gainful activity." In support of his argument, Plaintiff
relies upon Gatliffv. Commissioner ofSocial Security, 172 F.3d 690 (9 th Cir.
Gatliff states that substantial gainful activity means more than merely the
ability to find ajob and physically perform same but also requires the ability to
hold the job for a significant period of time. Id. at 694.
The Court finds that GatlifJis not persuasive. First, the record in Gatliff
contained considerable evidence that the claimant would not be able to maintain
employment for more than a few months due to his mental impairments. Id. at
Moreover, the Sixth Circuit has repeatedly rejected any suggestions of a
separate durational requirement in the analysis of substantial gainful activity. See
Durham v. Astrue, No. 6:09-202-DCR, 2010 WL 672136, at *6 (E.D.Ky. Feb. 22,
2010); Johnson v. Astrue, No. 08-298-JBC, 2009 WL 2473627, at *3 (E.D.Ky.
Aug. 10,2009); Garlandv. Astrue, No. 07-181-DLB, 2008 WL 2397566, at *6
(E.D.Ky. June 10, 2008). Instead, courts in the Sixth Circuit assume that implicit
in the RFC assigned to Plaintiff by the ALI is a finding that Plaintiff is capable of
maintaining employment. See Durham, 2010 WL 672136, at *6; Garland, 2008
WL 2397566, at *6.
In this case, implicit in the RFC is a finding that Plaintiff is capable of
maintaining employment. This fmding is supported by the record. Plaintiff
testified that he held the job with the cable company for 9 years (Tr. 30). His
earnings records showed that he worked for B and B Aerial Construction LLC or
CR Cable Construction, Inc. from 2000 through 2007 (Tr. 119-20).7 The ALI
accepted the VB testimony that Plaintiff could perform three positions (hand
packer, material handler, and unskilled cleaner) based on a hypothetical question
that incorporated the restrictions in the RFC he articulated (Tr. 17, 20, 45-46). The
VE testimony pre-supposed that a claimant with the restrictions articulated by the
ALJ would be capable of performing the job as regularly performed, i.e. on a fulltime basis. See 20 C.F.R. §§ 404. 1560(c)(2), 416.960(c)(2) ("other work exists in
significant numbers in the national economy that you can do"). The ALJ was
supported by substantial evidence in identifying work that Plaintiff could perfonn
on a full-time basis.
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 Summary Judgment be SUSTAINED. A judgment in favor of the Defendant
will be entered contemporaneously herewith.
This 8th day of August, 2011.
Henry R. Wilhoit, Jr., Senior Judge
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