Weldon v. SSA

Filing 13

MEMORANDUM OPINION & ORDER: The Court finds the ALJ properly applied relevant legal standards and her decision is supported by substantial evidence. Accordingly, Pla's 11 MOTION for Summary Judgment is DENIED and the Commissioner's 12 MOTION for Summary Judgment is GRANTED. Signed by Judge Karen K. Caldwell on 01/13/2014. (KLB) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 5:12-cv-00303-KKC
TINA WELDON
V.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

MICHAEL J. ASTRUE,
COMMSSIONER OF SOCIAL SECURITY

DEFENDANT

***********
\This matter is before the Court on Cross Motions for Summary Judgment filed by the
Plaintiff Tina Weldon (DE 11) and Defendant Commissioner Astrue (DE 12). For the reasons
stated below, the Plaintiff’s Motion for Summary Judgment is DENIED and the Defendant’s
Motion for Summary Judgment is GRANTED.
I.

Factual and Procedural Background

Plaintiff is a forty-seven year old, high school educated female seeking both Disability
Insurance Benefits and Supplemental Security Income Benefits. AR 105; 227-34. Plaintiff
alleges that because of a 2002 car accident she suffers from chronic back pain and a history of
pancreatitis. AR 110-12. The onset of the disability occurred in September 2007; Plaintiff ceased
working in February 2009. AR 227. Prior to 2007, Plaintiff held a variety of jobs including title
clerk, billings clerk, and office manager. AR 317. She also worked in customer service as a
cashier, salesperson, and waitress. Id.
Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security
Income Benefits in April 2009. AR 227-34. Her application was initially denied on July 28, 2009
and again on reconsideration. AR 166-69; 175-83. Plaintiff exercised her right to a hearing in

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November 2010 where the Administrative Law Judge (“ALJ”), Gloria York, found that the
Plaintiff was not disabled. AR 89-97. Plaintiff filed a request for review by the Social Security
Administration’s Appeals Council, but the request was denied August 24, 2012. AR 2-6. In
January 2013, the Plaintiff filed this appeal challenging the ALJ’s decision. R. 11. Since the
Plaintiff has exhausted all of her administrative remedies, her appeal is ripe for review by this
court pursuant to 42 U.S.C. § 405(g), § 1383(c) (3).
II.

Standard of Review

When reviewing decisions of the Social Security Agency, the Court is commanded to
uphold the Agency’s decision, “absent a determination that the Commissioner has failed to apply
the correct legal standards or has made findings of fact unsupported by substantial evidence in
the record.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (internal
quotation marks and citation omitted). Substantial evidence is “more than a mere scintilla of
evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d
284, 286 (6th Cir. 1994). Judicial review of the Commissioner’s decision “is limited to
determining whether the Commissioner’s decision is supported by substantial evidence and was
made pursuant to proper legal standards.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th
Cir. 2010).
Review must be based on the record as a whole. Heston v. Comm’r of Soc. Sec., 245 F.3d
528, 535 (6th Cir. 2001). The court may look into any evidence in the record to determine if the
ALJ’s decision is supported by substantial evidence, regardless of whether it has actually been
cited by the ALJ. Id. However, the court “do[es] not review the evidence de novo, make

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credibility determinations nor weight the evidence.” Brainard v. Sec’y of Health & Human
Servs., 889 F.2d 679, 681 (6th Cir. 1989).
This Court must defer to the Agency’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.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475
(6th Cir. 2003) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
Under the Social Security Act, disability is “the inability to engage in ‘substantial gainful
activity’ because of a medically determinable physical or mental impairment of at least one
year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007). The
ALJ determines if the claimant has a disability using a sequential five-step evaluation process. 20
C.F.R. § 416.920. Claimant has the burden under the first four steps of proving the impairment’s
existence, the severity of limitations caused by it, and that she is unable to perform past relevant
work. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The burden shifts to the
Commissioner at the fifth step. Id.
At the first step, the claimant must show she is not currently engaged in substantial
gainful activity. 20 C.F.R. § 416.920(a) (4) (I); 20 C.F.R. § 404.1520(b). At the second step, the
claimant must show that she suffers from a severe impairment or a combination of severe
impairments. 20 C.F.R. § 404.1520(c). At the third step, the claimant must establish that these
impairments meets or medically equals a listed impairment. 20 C.F.R. § 1520(d); 20 C.F.R. §
404.1525; 20 C.F.R. § 404.1526.
Before considering the fourth step, the ALJ must determine the claimant’s residual
functional capacity (“RFC”). 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545. Once the ALJ has

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done so, she must determine whether the claimant has the RFC to perform past relevant work. 20
C.F.R. § 404.1520(f).
At the fifth step, the burden shifts to the Commissioner to establish that there is sufficient
work in the national economy that the claimant can perform given her RFC, age, education, and
work experience. 20 C.F.R. § 404.1520(g); 20 C.F.R. § 404.1512(g); 20 C.F.R. § 404.1560(c).
III.

Analysis

In this matter, using the traditional five-step analysis, Preslar v. Sec’y of Health &
Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994); see also 20 C.F.R. § 404.1520 (1982), the
ALJ determined that the Plaintiff had not engaged in substantial gainful activity since September
30, 2007; that she had severe impairments, including low back pain with degenerative disc
disease and a history of pancreatitis, but that these impairments, or their combination, did not
meet or equal one of the listed impairments in 20 C.F.R. § 404; that she retained the RFC to
perform a full range of sedentary work; and that she is capable of performing past relevant work
as a billing clerk, title clerk office manager, or customer service representative. AR 89-97.
Plaintiff challenges the ALJ’s ruling on the following grounds: (1) the ALJ erred at step
three of the analysis by improperly evaluating the treating physician’s opinion and failing to give
adequate reasons for the weight accorded to it; (2) the ALJ further erred at step three by failing to
consider the totality of Plaintiff’s impairments to determine if they were sufficiently severe to
render her disabled; and (3) a reasonable person could conclude that the Plaintiff is disabled. The
Court will consider these arguments in turn.
A. Weight Accorded to Treating Physicians and Adequacy of Reasons for its
Rejection
In her first issue, Plaintiff asserts that the ALJ did not give proper weight to the opinion
of her treating physician, Dr. Kennon. Plaintiff contends that various factors support granting Dr.

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Kennon’s opinion deference including her experience, the nature of their relationship, and her
familiarity with the Plaintiff’s condition. R. 11.
A treating physician’s opinion is given substantial deference only when it is supported by
the objective medical evidence. Warner, 375 F.3d at 390. This deference is granted on the basis
that, “the medical professionals [are] most able to provide a detailed, longitudinal picture of [a
claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings alone.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting 20 C.F.R. §416.927(d) (2)). The treating
physician’s opinion, however, must “not be inconsistent with the other substantial evidence in
[the] case record.” 20 C.F.R. §404.1527(d) (2). In the event that the ALJ does not defer to the
treating physician’s opinion, she must provide “good reasons.” Bogle v. Sullivan, 998 F.2d 342,
347-48 (6th Cir. 1993) (citing Young v. Sec’y of Health & Human Servs., 925 F.2d 146, 151 (6th
Cir. 1990)). This requirement means that the ALJ’s reasons must be “sufficiently specific to
make clear to any subsequent reviews the weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.” Rogers, 486. F.3d at 242 (quoting Soc. Sec.
Rul. 96-2p, 1996 WL 374188 at *4 (July 2, 1996)).
In this case, the Court finds that the ALJ’s decision to discount Dr. Kennon’s opinion was
not in error because the opinion was unsupported by the objective medical evidence on record.
Specifically, Dr. Kennon’s opinion was inconsistent with her treatment records, her decision to
treat Plaintiff solely with prescription medication, the findings of Dr. Joshua Gibson’s
consultative examination, and Plaintiff’s statements at the hearing. AR 17-48, 70-78, 417-67;
556-60; 102-24.

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Dr. Kennon opined in the July 2009 RFC questionnaire that Plaintiff is incapable of
performing “low stress” jobs and could not walk any city blocks without rest or severe pain. AR
592-93. Dr. Kennon stated that the Plaintiff was capable of sitting or standing for ten and five
minutes at a time, respectively. Id. Further, Dr. Kennon alleged that the Plaintiff could sit or
stand for less than two hours in a typical work day and occasionally lift less than ten pounds. AR
593-94. The questionnaire included no reference to the Plaintiff’s history of pancreatitis or
limitations resulting from it. AR 591-95. In conclusion, Dr. Kennon stated that the Plaintiff was,
“unable to maintain standing, walking, [or] sitting for any period of time in order to hold [sic] a
job at this point.” AR 595.
The Court finds that the ALJ’s decision to accord limited weight to Dr. Kennon’s opinion
is supported by the objective medical evidence. As the ALJ observed, Dr. Kennon’s treatment
records show that she treated the Plaintiff’s chronic back pain solely through prescription
medication and did not recommend more rigorous or specialized treatment including, but not
limited to, physical therapy, chiropractor adjustment, injection, or surgical evaluation. AR 95-96.
Additionally, Dr. Kennon’s treatment records reflect the Plaintiff has normal stability, but suffers
from a decreased range of motion. AR 17-48, 70-78, 417-67. These findings, as the ALJ noted,
are consistent with those made by the Consulting Examiner, Dr. Gibson, who determined that the
Plaintiff suffers from chronic back pain resulting in a limited range of motion when attempting to
perform flexion-extensions and supine leg raises. AR 95; 562. Dr. Gibson also found that the
Plaintiff has a normal gait and station and was capable of walking moderate to long distances
without the assistance of a cane. AR 559-60. Plaintiff’s capability was further evidenced by her
ability to easily get on and off the examination table. AR 558. With regards to the Plaintiff’s
pancreatic condition, Dr. Kennon’s treatment records reflect that the Plaintiff suffered from

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abdominal or flank pain on several occasions in 2008. AR 420-39. The Plaintiff continued to
complain of abdominal pain intermittently throughout 2009, but as the ALJ noted, Plaintiff
testified at the hearing she has not sought treatment for it outside of the medication prescribed by
Dr. Kennon. AR 95, 113-14.
There was no error in the ALJ’s decision to limit the weight of Dr. Kennon’s opinion
because it was not supported by the objective evidence. The ALJ provided good reasons for not
deferring to the Dr. Kennon’s opinion, namely, that it was inconsistent with the objective
evidence, including her treatment records and conservative treatment of the Plaintiff. This
rationale is sufficiently clear and supports the weight accorded to Dr. Kennon’s opinion by the
ALJ.
B. Consideration of Totality of Plaintiff’s Impairments
Plaintiff next contends that the ALJ failed to consider the combined severity of her
impairments in determining her disability. R. 11. However, upon review the Court finds the ALJ
properly considered the combined effect of Plaintiff’s impairments before determining the
Plaintiff was not disabled.
In order for the Plaintiff to be disabled, the ALJ must consider the combined effect of all
of the Plaintiff’s impairments, without regard to whether any of the impairments, considered
individually, would be sufficient to render the Plaintiff disabled. Walker v. Comm’r of Soc. Sec.,
980 F.2d 1066, 1071 (6th Cir. 1992); see also 20 C.F.R. § 404.1523.
In reaching its determination, the ALJ stated that neither impairment met or medically
equaled one of the listed impairments. AR 93. The ALJ found that the Plaintiff suffers from
chronic back pain resulting from disc protrusion with mild encroachment on the S1 root and an
annular bulge at the L4-5 and a history of pancreatitis. AR 92; 95. However, the ALJ found

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under Section 1.04 of Appendix 1, 20 C.F.R. § 404, Subpt. P. App. 1, the Plaintiff’s low back
pain did not result in an inability to ambulate effectively, nerve root compression, or other
ailment that would render her disabled. AR 93. Additionally, the ALJ found her pancreatic
condition did not rise to the level of a disability under Section 5.00 of Appendix 1.
While the ALJ discussed each impairment individually, this in and of itself, does not
imply that she failed to consider the combined severity of the impairments. Loy v. Sec’y of
Health & Human Servs., 901 F.2d 1306, 1310 (6th Cir. 1990) (“[I]ndividual discussion of
multiple impairments does not imply that [the ALJ] failed to consider the effect of the
impairments in combination, where the ALJ specifically refers to a ‘combination of
impairments’ in finding the Plaintiff does not meet a listing.” (quoting Gooch v. Sec’y of Health
& Human Servs., 833 F.2d 589, 592 (6th Cir. 1978))). The ALJ specifically found in this case
that the Plaintiff did not have an impairment or “combination of impairments” that meets or
medically equals one of the listed impairments. AR 93.
C. Reasonable person analysis
Lastly, the Plaintiff alleges a reasonable person would conclude, based on the totality of
the circumstances, that she is disabled. The substantial evidence standard of review requires the
deference to the ALJ’s ruling if the court finds it is supported by the relevant evidence. Cutlip,
25 F.3d at 286. Because this Court finds the ALJ did not err in the weight assigned or the
adequacy of reason for the weight given to Dr. Kennon’s opinion and properly considered the
totality of the Plaintiff’s disabilities, the Plaintiff’s argument is without merit.
IV.

Conclusion

The Court finds that the ALJ properly applied the relevant legal standards and her
decision is supported by substantial evidence. Accordingly, it is order that the Plaintiff’s Motion

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for Summary Judgment (DE 11) is DENIED and the Commissioner’s Motion (DE 12) is
GRANTED.
Dated this 13th day of January, 2014.

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