Barnett v. SSA
Filing
11
MEMORANDUM OPINION AND ORDER: It is ORDERED that Plaintiff's 9 Motion for Summary Judgment be OVERRULED and Dft's 10 Motion for Summary Judgment be SUSTAINED. A judgment in favor of the Dft will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on November 28, 2011. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
at LEXINGTON
Civil Action No. 11-110-HRW
FRANCES BARNETT,
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 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 HISTORY
Plaintiff filed her current application for disability insurance benefits and
supplemental security income benefits on December 6, 2006, alleging disability
beginning on March 15, 2006, due to carpal tunnel syndrome, left hand trigger
thumb, a rod in her left femur, two herniated discs in her back, a shorter right leg,
hip problems, anxiety and muscle spasms (Tr. 206).
This application was denied
initially and_ on reconsideration (Tr. 91-98 and 101-107).
Two hearings were held were conducted by Administrative Law Judge
Ronald Kayser (hereinafter "ALJ"). Plaintiff accompanied by counsel, testified, as
did Betty Hale, 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.
2
On January 15,2010, the ALJ issued his decision finding that Plaintiff was
not disabled (Tr. 57-67).
Plaintiff was 44 years old at the time of the hearing decision (Tr. 185). She
has a 9th grade education (Tr. 717). Her past relevant work experience consists of
work as a factory assembler (Tr. 207).
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.59).
The ALJ then determined, at Step 2, that Plaintiff suffers from leg and back
pain, polysubstance abuse, borderline intellectual functioning, depressive disorder
not otherwise specified and anxiety disorder, not otherwise specified, which he
found to be "severe" within the meaning of the Regulations (Tr. 59-60).
At Step 3, the ALJ found that Plaintiff s impairments did not meet or
medically equal any of the listed impairments (Tr. 60-61).
The ALJ further found that Plaintiff could not return to her past relevant
work (Tr. 65) but determined that she has the residual functional capacity
("RFC") to perform a range of light work (Tr. 62-65). In addition, the ALJ found
Plaintiff retained the abilities to understand and recall simple and non-detailed
3
work procedures and instructions; maintain attention for two-hour periods;
complete routine mental aspects; make associated work-related decisions without
special supervision; follow a regular schedule; tolerate coworkers and accept
supervision in an object focused context with infrequent casual contacts; adapt to
gradual change; and appreciate work hazards (Tr. 62).
The ALJ finally concluded that these jobs exist in significant numbers in
the national and regional economies (Tr. 66-67).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the
sequential evaluation process.
The Appeals Council denied Plaintiffs request for review and adopted the
ALJ's decision as the final decision of the Commissioner on January 24,2011 (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.
III. ANALYSIS
A.
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
4
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 (6th 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,
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 ALI." Key v. Callahan, 109 F.3d 270,273
(6th Cir.1997).
B.
Plaintiff's Contentions on Appeal
Plaintiff contends that the ALI's finding of no disability is erroneous
because: (1) the ALI did not consider her impairments in combination; (2) the ALI
did not afford proper weight to the opinion of Dr. Liza Levy; (3) the ALI did not
consider whether Plaintiff could perform work activities on a sustained basis and
(4) the hypothetical presented to the VE was flawed.
5
C.
Analysis of Contentions on Appeal
Plaintiff s first claim of error is that the ALl did not consider her
impairments in combination.
A review of the hearing decision reveals that the ALl considered Plaintiff s
impairments in combination at various stages in his evaluation. The ALl
discussed Plaintiff s 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. 60). 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
ALl's individual discussion of multiple impairments does not imply that he failed
to consider the effect of the impairments in combination, where the ALl
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 ALl's approach in this
case passes Gooch and Loy muster and that Plaintiff s argument in this regard is
without merit.
6
Plaintiffs second claim of error is that the ALJ did not afford proper weight
to the opinion of Dr. Liza Levy.
Dr. Levy treated Plaintiff for anxiety, possible post-traumatic stress disorder
and attention deficit disorder between December 2006 and July 2007. On July 2,
2007, Dr. Levy completed a Mental Impairment Questionnaire (Tr. 692-698)
reflecting an opinion more restrictive than that of the ALJ. She opined Plaintiff
had "[p]oor or [n]one" ability to accept instructions and respond appropriately to
criticism from supervisors (Tr. 696). Dr. Levy also opined Plaintiff had fair ability
to perform many mental functions, such as maintaining concentration for two hour
segments, performing at a consistent pace, and working with others (Tr. 696). Dr.
Levy concluded that Plaintiff would be absent more than three times per month
(Tr. 695), but also found that Plaintiff had fair ability to maintain regular
attendance (Tr. 696). Additionally, she indicated that Plaintiff would have
"frequent" difficulties with concentration (Tr. 697), but agreed with the ALJ that
Plaintiff could nevertheless understand, remember, and carry out simple
instructions2 (Tr. 696; see also Tr. 62).
However, in a 2009 questionnaire, Dr. Levy noted that in 2007, Plaintiff
was capable of performing low-stress jobs3 and that she was possibly a
"malingerer" (Tr. 822).
7
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 Court 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 supported by sufficient medical data. Harris v. Heckler, 756 F.2d 431,
435 (6th Cir. 1985).
With regard to Dr. Levy's December 2009 questionnaire, the ALJ explained
that he gave it little weight because
it had been over two years since Dr. Levy stopped treating Plaintiff and she had
indicated Plaintiff was possibly a malingerer (Tr. 64).
The ALJ also considered Dr. Levy's July 2007 GAF score of 55 around the
time Plaintiff stopped treatment, reflecting just moderate symptoms (Tr. 64, 692,
821).
Further, the ALJ considered that Dr. Levy's treatments notes only revealed
details about many conflicts in Plaintiffs daily life, and the medical records did
not indicate Plaintiff had marked difficulties in areas deemed essential for work
such as memory, concentration, completing tasks, and getting along with others
8
(Tr. 64-65).
Thus, the ALJ concluded Dr. Levy's opinions were not due
great weight based on factors such as extent of treatment relationship,
supportability, and consistency which are enumerated in 20 C.F.R. §§
404. 1527(d), 416.927(d). The Court finds no error in this regard.
Plaintiffs third claim of error is that the ALJ did not consider whether
Plaintiff could perform work activities on a sustained basis.
The plaintiff cites the Ninth Circuit Court of Appeals case Gatliff v.
Commissioner o/Social Security Administration, 172 F.3d 690 (9th Cir. 1999) in
support of his argument.
Gatliffis not persuasive. In that case, the record contained considerable
evidence that the claimant would not be able to maintain employment more than a
couple of months and the ALJ had even acknowledged this fact. Id. at 692. In this
case, Plaintiff has not identified similar evidence.
Moreover, this Court has repeatedly rejected any suggestion of a separate
durational requirement. See e.g. Durham v. Astrue, No. 6:09-202-DCR, 2010 WL
672136, at *6 (E.D. Ky. Feb. 22,2010).
Therefore, Plaintiff s argument in this regard lacks merit.
9
Finally, Plaintiff contends that the hypothetical presented to the VE was
flawed. This circuit's long-standing rule is that the hypothetical question is proper
where it accurately describes a claimant's functional limitations. Varley v.
Secretary ofHealth and Human Services, 820 F.2d 777, 779. (6th Cir. 1987). This
rule is necessarily tempered by the requirement that the ALJ incorporate only
those limitations which he or she finds to be credible. Casey v. Secretary of
Health and Human Services, 987 F.2d 1230, 1235 (6th Cir. 1993). The Court
finds the hypothetical in this case properly reflects the credible evidence and was,
therefore, not flawed.
III. CONCLUSION
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 28thday of November, 2011.
S9JedBY'
~. Wilhoit Jr.
United States DIstii:t...
Henry R. Wilhoit, Jr., Senior Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?