Little v. SSA

Filing 27

MEMORANDUM OPINION & ORDER: (1) DENYING pla's 25 MOTION for Summary Judgment; (2) GRANTING dft's 26 MOTION for Summary Judgment; (3) the Acting Commissioner's final decision is AFFIRMED. Signed by Judge Joseph M. Hood on 10/19/17.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
JERRY MICHAEL LITTLE,

)
)
) Action No. 5:11-cv-00284-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL1,
Acting Commissioner of
Social Security
Defendant.
**

**

**

**

**

This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 25 and 26) on Plaintiff’s appeal of the
Commissioner’s denial of his application for disability insurance
benefits.2

The matter having been fully briefed by the parties is

now ripe for this Court’s review.
I.

Overview of the Process and the Instant Matter
In

determining

whether

an

individual

is

disabled,

an

Administrative Law Judge (“ALJ”) uses a five step analysis:
1. An individual who is working and engaging
in substantial gainful activity is not
disabled, regardless of the claimant’s
medical condition.

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted as the defendant in this suit. No further
action needs to be taken to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2

These are not traditional Rule 56 motions for summary judgment. Rather, it is
a procedural device by which the parties bring the administrative record before
the Court.

2. An individual who is working but does not
have
a
“severe”
impairment
which
significantly limits his physical or mental
ability to do basic work activities is not
disabled.
3. If an individual is not working and has a
severe impairment which “meets the duration
requirement and is listed in appendix 1 or
equal to a listed impairment(s)”, then he
is disabled regardless of other factors.
4. If a decision cannot be reached based on
current work activity and medical facts
alone, and the claimant has a severe
impairment, then the Secretary reviews the
claimant’s residual functional capacity and
the physical and mental demands of the
claimant’s previous work. If the claimant
is able to continue to do this previous
work, then he is not disabled.
5. If the claimant cannot do any work he did
in the past because of a severe impairment,
then the Secretary considers his residual
functional capacity, age, education, and
past work experience to see if he can do
other work. If he cannot, the claimant is
disabled.

Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520(1982)).
II.  
Plaintiff filed the instant claim for Disability Insurance
Benefits (DIB), alleging an onset date of June 15, 2004, with a
protective filing date of February 25, 2009 (Tr. 346-48, 391).3
After

Plaintiff’s

claim

was

denied

at

the

initial

3

Plaintiff filed a previous claim for DIB, which was denied and became
administratively final on February 23, 2007 (Tr. 113-22).

2

and

reconsideration levels (Tr. 82-83), a hearing was held on July 28,
2010 (Tr. 87), and on August 9, 2010, an administrative law judge
(ALJ) denied Plaintiff’s claim (Tr. 84-98). On August 8, 2011, the
Appeals Council denied Plaintiff’s request for review (Tr. 99104).

Plaintiff

sought

judicial

review

in

this

Court,

which

remanded the case on December 6, 2011, because of an inaudible
hearing recording (Tr. 105-07). A second ALJ held a hearing on
October 19, 2012, and on November 29, 2012, the ALJ issued a second
decision denying Plaintiff’s claim (Tr. 123-39). On December 13,
2013, the Appeals Council granted Plaintiff’s request for review
and remanded to the ALJ for further development of Plaintiff’s
residual

functional

capacity

(RFC)

assessment

and

additional

testimony from a vocational expert (VE) (Tr. 140-44). On October
30, 2014, the ALJ held a third hearing (Tr. 25-68), and on January
12, 2015, the ALJ issued a third decision denying Plaintiff’s claim
(Tr. 8-24). Plaintiff did not file timely exceptions to the ALJ’s
January 2015 decision, and thus, on August 23, 2016, the Appeals
Council informed Plaintiff that the ALJ’s January 2015 decision
was now the Commissioner’s final decision (Tr. 1-5). Plaintiff now
seeks

judicial

review

of

the

Commissioner’s

final

decision

pursuant to 42 U.S.C. § 405(g).
III.  
Plaintiff, born in 1966, was forty-three years old as of his
date last insured (December 31, 2009), can understand English, and
3

has at least a high school education (Tr. 17, 391, 394, 400).
Plaintiff has past relevant work experience as an assembly worker,
forklift operator, telephone line installer, backhoe operator, and
injection molding operator (Tr. 17, 61-62, 383-90). Plaintiff had
severe impairments of morbid obesity; joint pain, status-post
multiple

orthopedic

traumas

in

motor

vehicle

accidents

with

history of fractures of right femur, right hip, right knee, right
tibia, left tibia, and left fibula with open reduction internal
fixation and subsequent surgeries to remove hardware; and right
shoulder pain with tendinopathy (Tr. 13-14, Finding No. 3). The
ALJ found Plaintiff did not have an impairment or combination of
impairments that met or equaled a listing (Tr. 14, Finding No. 4).
After a careful evaluation of all the evidence of record, the
ALJ found Plaintiff had the RFC to perform sedentary work with no
more

than

occasional

overhead

reaching

with

the

right

upper

extremity; no more than occasional climbing ramps or stairs; no
more

than

occasional

stooping,

kneeling,

or

crouching;

no

crawling; no ambulation on uneven terrain; no operation of foot
pedal controls with the right lower extremity; no climbing ladders,
ropes, or scaffolds; and no exposure to cold temperature extremes,
humidity, vibration, or hazards such as unprotected heights or
dangerous machinery (Tr. 14-16, Finding No. 5). The ALJ then found
Plaintiff could not return to his past relevant work (Tr. 17,
Finding No. 6). Relying on VE testimony, the ALJ found Plaintiff
4

could do other work that existed in the national economy (Tr. 1718, Finding No. 10; 61-66).

The ALJ thus found Plaintiff was not

disabled (Tr. 18, Finding No. 11).
IV.
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).

“The ALJ’s findings are conclusive as long

as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
omitted).

Substantial evidence “means such relevant evidence as

a reasonable mind might accept.” Foster, 279 F.3d at 353.
V.

Plaintiff bears the ultimate burden of proving disability.
See 42 U.S.C. § 423(d)(5); Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987); Richardson v. Heckler, 750 F.2d 506, 509 (6th Cir. 1984).
The regulations require Plaintiff to offer the evidence he believes
will

prove

disability.

See

20

C.F.R.

§§

404.1512(a),

(c),

404.1513(e), 404.1516 (2016);4 Barnhart v. Thomas, 540 U.S. 20
(2003)

(the

Commissioner’s

regulations

deserve

deference).

Plaintiff failed to meet his burden.

4

All citations to the Code of Federal Regulations are to the 2016 version.

5

Plaintiff challenges the ALJ’s consideration of treating
physician Osias M. Villaflor, M.D.’s, opinions. Pl.’s Br. at 2-7.
When evaluating a doctor’s opinion, an ALJ considers numerous
factors,

including

whether

the

doctor

examined

the

claimant,

whether the doctor treated the claimant, whether the doctor treated
the claimant, the evidence the doctor presents to support his or
her opinion, whether the doctor’s opinion is consistent with the
record as a whole, and the doctor’s specialty. See 20 C.F.R. §
404.1527(c). Generally, a treating doctor’s opinion is entitled to
more weight and an ALJ must give good reasons for discounting a
treating

doctor’s

opinion.

See

20

C.F.R.

§

404.1527(c)(2);

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013);
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
An ALJ, however, may discount a doctor’s opinion, including a
treating

doctor’s

opinion,

when

the

doctor

does

not

provide

objective medical evidence to support his or her opinion or if the
doctor’s opinion is inconsistent with the record as a whole. See
20 C.F.R. § 404.1527(c); Walters v. Comm’r Soc. Sec., 127 F.3d
525, 529-30 (6th Cir. 1997); Bogle v. Sullivan, 998 F.2d 342, 34748 (6th Cir. 1993).
Moreover,
claimant

is

opinions

“disabled,”

on

some

the

issues,

claimant’s

such

as

whether

the

RFC,

or

whether

the

claimant’s impairments meet or equal a listed impairment, “are not
medical opinions, . . . but are, instead, opinions on issues
6

reserved

to

the

Commissioner

because

they

are

administrative

findings that are dispositive of a case; i.e., that would direct
the

determination

404.1527(d);

see

or
20

decision
C.F.R.

§

of

disability.”

404.1527(a)(2);

20

C.F.R.

Social

§

Security

Ruling (SSR) 96-5p, 1996 WL 374183; Dunlap v. Comm’r of Soc. Sec.,
509 F. App’x 472, 476 (6th Cir. 2012); Bass v. McMahon, 499 F.3d
506, 511 (6th Cir. 2007).

Opinions on issues reserved for the

Commissioner “even when offered by a treating source, . . . can
never be entitled to controlling weight or be given special
significance.” SSR 96-5p, 1996 WL 374183, at *5; see 20 C.F.R. §
404.1527(d)(3); Bass, 499 F.3d at 511. “Giving controlling weight
to such opinions would, in effect, confer upon the treating source
the authority to make the determination or decision about whether
an

individual

abdication

of

is
the

under

a

disability,

Commissioner’s

and

statutory

thus

would

be

an

responsibility

to

determine whether an individual is disabled.” SSR 96-5p, 1996 WL
374183, at *2. In addition, although doctors’ opinions about what
a claimant can still do or the claimant’s restrictions are relevant
evidence, such opinions are not determinative because the ALJ has
the responsibility of assessing the claimant’s RFC. See 20 C.F.R.
§§

404.1512(b)(2),

404.1545(a)(3),

404.1513(b)(6),

404.1546(c);

SSR

The

404.1527(d)(2),

administrative

record

contains four physical capacities evaluations from Dr. Villaflor
dating from January 2006 to June 2010 (Tr. 612-13, 618-19, 6297

30, 643-44). However, because Plaintiff filed a previous claim
that became final on February 23, 2007, the ALJ was barred by
administrative res judicata from considering evidence dated before
February 23, 2007 (Tr. 15).

See Drummond v. Comm’r of Soc. Sec.,

126 F.3d 837 (6th Cir. 1997).5 Thus, the ALJ only weighed Dr.
Villaflor’s opinions from February 2009 and June 2010 (Tr. 16, 92,
132, 629-30, 643-44).6
In

a

February

2009

physical

capacities

evaluation,

Dr.

Villaflor opined Plaintiff could lift/carry less than ten pounds,
needed an option to alternate sitting/standing as needed, had
restrictions

in

extremities,

had

the
a

use

of

complete

his

bilateral

inability

to

upper
perform

and

lower

postural

activities, had multiple environmental limitations, and would need
unscheduled interruptions of work routine as needed to alleviate
pain (Tr. 629-30).

In a June 2010 physical capacities evaluation,

Dr. Villaflor opined much the same limitations as in his February

5

Likewise, absent a colorable constitutional claim, administrative res
judicata bars Plaintiff from litigating in this Court his entitlement to
disability benefits for any time before February 23, 2007. See Bogle, 998
F.2d at 346 (“when a prior decision is not reopened, this court has no
jurisdiction to review the actions of the [Commissioner] on the earlier claim
in the absence of a colorable constitutional claim”); see also Priest v. Soc.
Sec. Admin., 3 F. App’x 275, 276 (6th Cir. 2001) (holding claimant must show
she was disabled during the period between a previous denial of benefits and
her date last insured to be entitled to DIB).
6 In the ALJ’s January 2015 decision at issue, she adopted her analysis of
Dr. Villaflor’s opinions from her November 2012 decision, which was itself an
adoption of the analysis provided in the ALJ’s decision from August 2010 (Tr.
16, 92, 132). For purposes of this analysis, citations are made to all three
ALJ decisions.

8

2009 opinion, with the addition of limitations against sitting
more than two hours in an eight-hour workday or standing/walking
more than one hour in an eight-hour workday (Tr. 643-44).
The ALJ provided four good reasons, supported by substantial
evidence, for discounting Dr. Villaflor’s opinions (Tr. 16, 92,
132).

First, Dr. Villaflor’s opinions were inconsistent with the

objective

medical

evidence

of

record

(Tr.

16,

92,

132).

In

particular, Dr. Villaflor’s opinions were inconsistent with x-rays
of Plaintiff’s right hand in December 2007 (Tr. 636), left foot in
March 2008 (Tr. 634), and bilateral elbows and left forearm in
October 2008 (Tr. 633). As the ALJ noted, none of the x-rays showed
any current fractures or other acute osseous abnormalities (Tr.
16, 92, 132, 633-34, 636).
Second, the ALJ discounted Dr. Villaflor’s opinions because
he only saw Plaintiff intermittently, with significant time gaps
in treatment (Tr. 16, 92, 132).

A review of the record reveals

that, in the relevant period from February 2007 to December 2009,
Dr.

Villaflor

only

saw

Plaintiff

six

times

(Tr.

620-25).

Furthermore, contrary to Plaintiff’s allegation, Pl.’s Br. at 7,
the ALJ was obligated to consider the frequency of Dr. Villaflor’s
examinations

when

weighing

his

opinions.

See

20

C.F.R.

§

404.1527(c)(2)(i); see also Hoover v. Colvin, No. 6:13–cv–157–JMH,
2014 WL 5107473, at *3 (E.D. Ky Sept. 29, 2014) (“Dr. Crispin
candidly admitted in her January 2012 opinion that she had seen
9

Plaintiff only intermittently since March 2011, a statement which
serves as substantial evidence to support the ALJ’s conclusion
that

she

lacked

a

longitudinal

perspective

on

Plaintiff’s

condition.”).
Third, the ALJ rejected Dr. Villaflor’s opinions because they
were inconsistent with consultative examiner Helen O’Donnell,
M.D.’s,

May

2009

evaluation

(Tr.

16,

92,

132,

562-66).

Dr.

O’Donnell examined Plaintiff on behalf of the state agency and
found he had, among other things, intact fine and gross motor
manipulation and normal sensory and reflexes (Tr. 565). She noted
he was able to walk with a normal gait without assistive device
and sit during the interview without obvious discomfort (Tr. 565).
She opined he had the ability to perform activities involving
sitting which allow frequent change of position and appropriate
breaks, carry light loads, walk short distances, and stand short
periods of time (Tr. 565). Thus, contrary to Plaintiff’s contention
(Pl.’s Br. at 5), Dr. O’Donnell’s opined limitations were not
nearly as restrictive as those opined by Dr. Villaflor (Tr. 565,
629-30, 643-44).
Finally,

the

ALJ

rejected

Dr.

Villaflor’s

opinions

of

essentially disabling limitations because they were inconsistent
with Plaintiff’s statement that he stopped work, not because he
was altogether unable to work, but because there was no light work
available (Tr. 16, 92, 132). As the ALJ noted, in December 2003 –
10

six months before Plaintiff’s alleged onset date in June 2004 (Tr.
391) – orthopedic surgeon J. K. Ritterbusch, Jr., M.D., released
Plaintiff to full activity, but Plaintiff reported there was no
light duty work available to him (Tr. 16, 39, 92, 132, 525). Thus,
substantial

evidence

supports

the

ALJ’s

rejection

of

Dr.

Villaflor’s opinions.
Plaintiff alleges the ALJ did not account for the length of
Dr. Villaflor’s treating relationship with Plaintiff. Pl.’s Br. at
6-7. However, length of treatment is only one of the factors
relevant to an ALJ’s consideration of a physician’s opinion. See
20 C.F.R. § 404.1527(c)(2)(i). As discussed, the ALJ properly found
that the relative infrequency of Dr. Villaflor’s examinations
diminished the credibility of his opinions (Tr. 92). See id.
Plaintiff alleges the ALJ’s notation of the intermittent
nature of Dr. Villaflor’s examinations was inappropriate, because
Plaintiff could not afford treatment and/or felt it was unlikely
to improve his condition. Pl.’s Br. at 7. However, as discussed,
the ALJ noted the infrequency of Dr. Villaflor’s examinations to
show that Dr. Villaflor did not have a longitudinal perspective of
Plaintiff’s condition (Tr. 16, 92, 132). Plaintiff’s reasons for
not obtaining additional treatment were not at issue.
Plaintiff alleges the ALJ gave no analysis of observations of
pain or Plaintiff’s regular need for narcotic medication. Pl.’s
Br. at 7. Plaintiff fails to develop this argument by citing
11

evidence or controlling authority, thereby waiving the issue. See
Moore v. Comm’r of Soc. Sec., 573 F. App’x 450, 543 (6th Cir.
2014). Regardless, “‘[a]n ALJ can consider all the evidence without
directly addressing in his written decision every piece of evidence
submitted by a party.’” Kornecky v. Comm’r of Soc. Sec., 167 F.
App’x 496, 508 (6th Cir. 2006) (quoting Loral Defense SystemsAkron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999) (citations
and quotations omitted)). Moreover, the mere fact that Plaintiff
complained of pain and was treated with narcotic medication does
not establish the existence of significant functional limitations.
See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The mere
diagnosis [of a condition], of course, says nothing about the
severity of the condition.”).
Finally, Plaintiff alleges his inability to ambulate has
resulted in his weight exceeding 400 pounds. Pl.’s Br. at 7. He
fails to draw any connection between this conclusory allegation
and the ALJ’s consideration of Dr. Villaflor’s opinions.
VI.
For all of the reasons set forth above, IT IS ORDERED:
1)

that Plaintiff’s Motion for Summary Judgment (DE 25) is

DENIED;
2)

that Defendant’s Motion for Summary Judgment (DE 26) is

GRANTED, and;
3)

The Acting Commissioner’s final decision is AFFIRMED.
12

This the 19th day of October, 2017.

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