Noble v. SSA
Filing
19
MEMORANDUM OPINION & ORDER: (1) DENYING pla's 15 MOTION for Summary Judgment; (2) GRANTING Commissioner's 18 MOTION for Summary Judgment. Signed by Judge Joseph M. Hood on 7/17/13.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ANNA JOYCE NOBLE,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
5:12-cv-329-JMH
MEMORANDUM OPINION & ORDER
***
This matter is before the Court upon cross-motions
for
summary
Commissioner's
insurance
reviewed
judgment
denial
benefits.
the
record
on
of
Plaintiff's
her
[Tr.
and
appeal
application
9—18].1
being
for
The
otherwise
of
the
disability
Court,
having
sufficiently
advised, will deny Plaintiff's motion [D.E. 15] and grant
Defendant's motion [D.E. 18].
I.
OVERVIEW OF THE PROCESS AND THE INSTANT MATTER
The Administrative Law Judge ("ALJ"), in determining
disability, conducts 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
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.
1
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 is
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 & Human Servs., 14 F.3d 1107,
1110 (6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
"The burden of proof is on the claimant throughout the
first
four
disabled."
steps
Id.
of
this
process
to
prove
that
he
is
"If the analysis reaches the fifth step
without a finding that the claimant is not disabled, the
burden transfers to the Secretary."
Id.
In the instant matter, the ALJ considered Plaintiff’s
claim
in
accordance
evaluation process.
with
the
[Tr. 9—18].
2
five-step
sequential
He first determined under
step
one
date.
Plaintiff
activity
gainful
that
since
[Tr. 11].
has
not
April
engaged
14,
substantial
the
2008,
in
application
Next, the ALJ continued to step two and
found that Plaintiff has five medically determinable severe
impairments, including chronic left arm pain, status post
left upper extremity surgery, chronic obstructive pulmonary
disease/tobacco
abuse,
borderline
versus
low
average
intellectual functioning, and depressive disorder.
[Tr.
11].
After deciding that Plaintiff’s impairments did not
equal
a
listed
proceeded
to
impairment
step
four
under
step
three,
found
that
Plaintiff
and
the
ALJ
has
a
residual functional capacity (“RFC”) to perform light work.
[Tr. 13].
Because Plaintiff has no prior work experience,
the ALJ concluded that she has no past relevant work to
perform
with
this
RFC;
however,
he
determined
with
the
assistance of a vocational expert that other work exists in
significant numbers nationally and across the state that
Plaintiff can perform in her condition.
[Tr. 17].
Thus,
the ALJ determined that Plaintiff is not disabled under the
Social Security Act.
In
this
Commissioner’s
[Tr. 17—18].
appeal,
decision
evidence of record.
Plaintiff
is
not
argues
supported
by
that
the
substantial
Specifically, Plaintiff argues that
3
the ALJ erred by 1) failing to disqualify himself as an ALJ
because
his
adjudication
was
impartial;
2)
improperly
relying on the testimony of psychological medical expert,
Dr.
Doug
McKeown;
3)
improperly
discounting
Plaintiff’s
credibility as to her statements regarding the intensity,
persistence,
and
limiting
effects
of
her
symptoms;
4)
relying on the vocational expert’s testimony, as Plaintiff
points
out
several
errors
in
her
testimony;
and
disregarding the Appeals Council Order of 1/25/2010.
84—87]; [D.E. 15-1].
Plaintiff
and
5)
[Tr.
The Court has considered arguments by
the
Commissioner,
as
well
as
the
administrative record, and, for the reasons stated below,
affirms the Commissioner’s decision.
II.
STANDARD OF REVIEW
In
reviewing
benefits,
the
the
court
ALJ's
may
decision
not
try
the
to
deny
case
de
disability
novo,
nor
resolve conflicts in the evidence, nor decide questions of
credibility.
Cutlip v. Sec'y of Health & Human Servs., 25
F.3d 284, 286 (6th Cir. 1994).
Instead, judicial review of
the ALJ's decision is limited to an inquiry into whether
the ALJ's findings were supported by substantial evidence,
42 U.S.C. § 405(g), Foster v. Halter, 279 F.3d 348, 353
(6th Cir. 2001), and whether the ALJ employed the proper
legal standards in reaching his conclusion, see Landsaw v.
4
Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir.
1986).
"Substantial evidence" is "more than a scintilla of
evidence,
relevant
but
less
evidence
than
as
a
a
preponderance;
reasonable
adequate to support a conclusion."
mind
it
might
is
such
accept
as
Cutlip, 25 F.3d at 286.
III. FACTUAL AND PROCEDURAL BACKGROUND
At the time of her hearing, Plaintiff was a fortyseven year old woman with an eighth-grade education.
44].
[Tr.
She has no past work experience, although she has
applied for positions at Wendy’s and McDonalds to no avail.
[Tr. 60].
Plaintiff filed for disability under Title II on
April 14, 2008, alleging disability beginning September 8,
2007.
upon
[Tr. 9].
The claim was denied both initially and
reconsideration.
Plaintiff
requested
a
[Tr.
hearing
place on April 20, 2009.
80—81;
with
[Tr. 25].
97—100;
the
ALJ,
103—05].
which
took
The ALJ issued an
unfavorable decision denying disability on July 24, 2009,
but the Appeals Council remanded the case to another ALJ
for further proceedings.
[Tr. 85—86; 91].
Another hearing
was held on June 2, 2011, and another unfavorable decision
was issued by a second ALJ on July 11, 2011.
[Tr. 9—18].
Plaintiff
unfavorable
decision.
now
appeals
from
[D.E. 1].
5
this
second
According
to
Plaintiff,
her
medical
problems
began
when she was injured in a car accident in 2005 and suffered
a fracture in her left arm.
[Tr. 324].
Plaintiff received
surgery and an intramedullary rod was inserted in her arm.
[Tr. 325—27].
She now complains of constant upper left arm
pain, and has sought treatment for her left arm in the
emergency room sporadically throughout the years, sometimes
after minor falling accidents.
at 4].
her
[Tr. 419; 564]; [D.E. 15-1
Plaintiff has not sought consistent treatment for
pain,
nor
has
she
sought
prescriptions
medications, citing financial constraints.
for
pain
[Tr. 46—48].
Instead, Plaintiff takes Tylenol and Advil to alleviate her
symptoms
in
her
left
arm.
Plaintiff is right-handed.
[Tr.
47;
52].
Notably,
[Tr. 26].
Plaintiff received a consultative physical exam in May
2008 from Dr. Rita Ratliff.
[Tr. 345].
Dr. Ratliff noted
that Plaintiff walked with a normal gait, made good eye
contact,
could
use
her
hands
for
fine
and
gross
manipulation without difficulty, and had a full range of
motion in all upper and lower extremities.
[Tr. 347].
Further, Dr. Ratliff noted that while she did not attempt
to
raise
her
left
shoulder
overhead
initially,
“with
diversion she seemed to have normal range of motion in her
left shoulder.”
[Tr. 347].
Based on the examination, Dr.
6
Ratliff “found no evidence for restriction for stooping,
bending,
reaching,
sitting,
standing,
moving
about,
lifting, carrying, handling objects or traveling.”
347].
Other
physical
constraints
cited
by
[Tr.
Plaintiff
include headaches, which she claims can last up to ten
days.
[Tr. 50].
Dr. Ratliff noted that these headaches
are most likely tension related.
also
a
chronic
smoker,
as
she
[Tr. 347].
has
cigarettes a day for over thirty years.
Mentally,
Plaintiff
claims
Plaintiff is
smoked
a
pack
of
[Tr. 345].
that
she
suffers
from
depression, and testing revealed that she had borderline to
low average intellectual functioning.
[Tr. 11].
In 2008,
Melissa Couch, Ph.D., examined Plaintiff at the request of
her
attorney.
Dr.
Couch’s
assessment
of
Plaintiff
is
largely a collection of Plaintiff’s self-reported symptoms,
and Dr. Couch’s speculation of how these symptoms could
“likely” affect Plaintiff.
[Tr. 331—38].
Dr. Couch did
administer the Wechsler Adult Intelligence Scale test, from
which Plaintiff fell in the “borderline” range between low
average and mild cognitive impairment.
[Tr. 334].
She was
also administered a reading test, revealing that she reads
on a fourth grade level, and the Personality Assessment
Inventory, which revealed that she portrayed herself in a
negative and/or pathological manner.
7
[Tr. 334].
Dr. Couch
proceeded
to
capacity
conclude
in
questionnaire
a
residual
Plaintiff
that
mental
would
functional
largely
be
unable to meet competitive standards in some work-related
areas,
and,
in
most
ability to function.
work-related
areas,
would
have
no
[Tr. 339—43].
Another independent examiner, Dr. Emily Skaggs, Psy.
D., came to quite opposite conclusions in 2011.
She
noted
that
questions,
based
she
on
was
Plaintiff’s
either
responses
off
of
Plaintiff’s
her
ability
to
“expressing
psychopathology or attempting to fake bad.”
Based
[Tr. 473].
examination,
she
to
stress
tolerate
test
severe
[Tr. 473].
concluded
and
that
sustain
attention and concentration towards simple repetitive tasks
were only slightly affected by her impairments, and her
ability
to
respond
appropriately
to
coworkers was only moderately affected.
Notably,
Plaintiff
is
still
supervisors
and
[Tr. 474].
able
to
complete
light
household chores, do some shopping, watch television, play
video games on a computer, go out to eat and to car shows
and
flea
friends,
markets
prepare
occasionally,
simple
meals,
visit
work
with
family
puzzles,
use
and
a
telephone, read for enjoyment, pay bills, count change, and
attend to all of her personal needs.
[Tr. 12].
Moreover,
although Plaintiff does not have a driver’s license, she is
8
still able to drive, and blames her lack of driving on her
inability to afford a vehicle.
also married.
[Tr. 34].
Plaintiff is
[Tr. 43].
IV. ANALYSIS
Plaintiff’s first argument is that ALJ Ronald Kayser
engaged in improper conduct at the hearing such that he
became
an
“adversarial
participant”
in
the
action,
thus
disqualifying himself to impartially adjudicate the case.
Specifically, when ALJ Kayser telephoned Dr. Doug McKeown
so that Dr. McKeown could testify as a medical expert at
the hearing, ALJ Kayser asked Dr. McKeown several questions
from a sheet entitled “Medical Assessment of Ability to do
Work-Related
McKeown’s
Activities
answers.
[Tr.
[Mental]”
and
recorded
695—96].
Further,
ALJ
Dr.
Kayser
forged Dr. McKeown’s signature at the end of the document
and
entered
it
into
the
record
as
an
hearing, with no objection from Plaintiff.
exhibit
at
the
[Tr. 695—96].
Plaintiff’s counsel did not object to the exhibit at
the hearing, nor was the issue raised at any point in the
administrative level.
did
not
raise
[D.E. 70, 77].
allegations
of
bias
with
Because Plaintiff
the
ALJ
or
the
Appeals Council as instructed by 20 C.F.R. § 416.1440, the
claim is arguably waived.
Millmine v. Sec’y of Health &
Hum. Servs., No. 94-1826, 1995 WL 641300, at *2 (6th Cir.
9
Oct. 31, 1995) (citing Muse v. Sullivan, 925 F.2d 785, 790—
91 (5th Cir. 1991)) (“Absent good cause, failure to raise
the issue of bias before the Secretary constitutes waiver
of the right to raise the issue on appeal.”).
Because
Plaintiff
at
was
represented
by
different
counsel
her
hearing, the Court will entertain the issue on the merits;
however, this does not help Plaintiff’s case, as ALJ Kayser
did not display sufficient bias or impartiality such that
remand is warranted.
All
due
process
requires
in
a
Social
Security
disability hearing is that the hearing afforded be “full
and fair.”
Flatford v. Chater, 93 F.3d 1296, 1305 (6th
Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389,
401—02 (1971)).
Further, “the court must start from the
presumption that administrative adjudicators are unbiased,”
and
it
evidence
is
Plaintiff’s
that
present.”
a
risk
of
burden
actual
to
provide
bias
or
“convincing
prejudgment
is
Wells v. Apfel, No. 99-5548, 2000 WL 1562845, at
*5 (6th Cir. Oct. 12, 2000); Bailey v. Comm’r, 413 F. App'x
853, 856 (6th Cir. 2011) (quoting Navistar Int’l Transp.
Co. v. U.S.E.P.A., 941 F.2d 1339, 1360 (6th Cir. 1991)).
Under
burden.
this
To
commendable,
be
as
framework,
clear,
it
Plaintiff
ALJ
certainly
10
Kayser’s
created
has
not
met
her
conduct
was
not
an
appearance
of
impropriety
exhibit.
the
that
he
affixed
Dr.
McKeown’s
name
to
the
Regardless, because the Court has the benefit of
hearing
transcript,
which
reveals
that
ALJ
Kayser
accurately read the form to Dr. McKeown and checked the
boxes that aligned with Dr. McKeown’s answers, the Court
cannot conclude that ALJ Kayser’s conduct showed bias or
impartiality just because he then relied on that exhibit in
his opinion.
Plaintiff’s argument, if it is not waived, is
without merit.
Second,
relied
on
Plaintiff
Dr.
asserts
McKeown’s
that
the
improperly
Among
testimony.
ALJ
Plaintiffs
complaints are 1) Dr. McKeown is not licensed to practice
in Kentucky, but rather in Alabama and Florida; 2) Dr.
McKeown also provides consultative exams for Alabama state
disability services, which creates a conflict of interest
with
his
role
as
a
medical
expert
in
a
federal
Social
Security Administration case; 3) Dr. McKeown’s provision of
medical testimony without examining Plaintiff violates the
American
Psychological
Association’s
Ethical
Code
of
Conduct at Principle 9.01(b); and 4) Dr. McKeown relies on
Dr. Skaggs’s psychological exam in his opinion, an exam
which he acknowledges may have been “invalid.”
The Court is not persuaded by Plaintiff’s arguments.
First, there is simply no requirement in the regulations
11
that
a
medical
expert
be
licensed
in
the
Plaintiff’s
jurisdiction to review the record and provide a medical
opinion.
Dr. McKeown is a licensed psychologist in Alabama
and Florida with an active practice in Alabama, and was
thus qualified to review Plaintiff’s medical records and
provide a medical opinion to the ALJ.
the
fact
that
Dr.
McKeown
also
[Tr. 63].
serves
for
Further,
the
state
disability office does not create a conflict of interest
with his involvement in this case, as Dr. McKeown never
dealt with Plaintiff in his capacity as a state examiner.
Cf. Bergstad v. Comm’r of Soc. Sec. Admin., 967 F. Supp.
1195, 1203—04 (D. Or. 1997) (noting that a conflict of
interest
may
arise
federal
case
also
if
the
took
medical
part
in
expert
the
serving
claimant’s
in
a
state
disability application that was denied, since he would have
essentially had to reverse his prior medical diagnosis).
Nor does Dr. McKeown’s testimony run afoul of the American
Psychological Association’s Ethical Code of Conduct, since,
under Principle 9.01(c), “[w]hen psychologists conduct a
record review . . . and an individual examination is not
warranted
or
necessary
for
the
opinion,
psychologists
explain this and the sources of information on which they
based
their
conclusions
and
12
recommendations.”
Ethical
Principles of Psychologists and Code of Conduct, AMERICAN
PSYCHOLOGICAL ASSOCIATION, http://www.apa.org/ethics/code/index.
aspx?item=12 (last visited July 15, 2013).
Finally, Plaintiff argues that Dr. McKeown erroneously
relied upon Dr. Skaggs’s medical opinion when forming his
own,
given
noted
that
Plaintiff’s response pattern was possibly “invalid.”
[Tr.
67].
his
Zeroing
admission
in
on
that
the
Dr.
Skaggs
“invalid”
testing
comment,
Plaintiff argues that the ALJ should have assigned greater
weight
to
consultative
psychologist
Dr.
Couch’s
opinion
than to Dr. McKeown’s and Dr. Skaggs’s opinions.
However, the ALJ’s choice to assign greater weight to
Dr. McKeown’s and Dr. Skaggs’s opinions over Dr. Couch’s
opinion
is
supported
by
substantial
evidence.
The
ALJ
discussed Dr. Couch’s medical report at the hearing and
within his opinion in detail.
treatment
notes
largely
subjective
self-reporting”
He observed that Dr. Couch’s
reflected
and,
without
the
“claimant’s
“support
in
the
record” nor “substantiation such as mental health treatment
notes,” explained how these self-reported symptoms
affect her if they were true.
because
notes,
Dr.
Couch
treatment
did
not
[Tr. 16].
rely
intervention,
on
might
He explained that
supporting
medication,
or
treatment
objective
medical history, her opinion was not supported by objective
13
medical evidence.
sound.
[Tr. 16—17].
The ALJ’s reasoning is
See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477
(6th Cir. 2003) (holding that a physician’s opinion can be
discredited by the ALJ if the opinion is not supported by
objective medical evidence).
Further, although Plaintiff focuses on the “invalid”
nature of Dr. Skaggs’s testing, she ignores that the reason
that Dr. Skaggs noted that some of the testing was likely
invalid was because the results showed that Plaintiff was
either significantly impaired, “which was inconsistent with
her
mental
symptoms.
status
and
[Tr. 67].
interview,”
or
was
over-reporting
Evidence of malingering is something
that an ALJ is entitled to consider when deciding how much
weight to assign to a physician’s opinion.
King v. Astrue,
No. 6:09-162-JMH, 2010 WL 1257753, at *4 (E.D. Ky. Mar. 26,
2010)
(“The
ALJ
is
not
required
to
accept
Ms.
Moore’s
findings, where other examinations indicate that Plaintiff
is malingering.”); see also Paul v. Astrue, 827 F. Supp. 2d
739, 744 (E.D. Ky. 2011) (approving the ALJ’s consideration
of Plaintiff’s malingering).
In sum, because Dr. McKeown conducted a review of the
record
and
provided
his
medical
opinion,
the
ALJ’s
consideration of his testimony was not only not error — it
was required.
See Social Security Ruling 96–6p, 1996 WL
14
374180, at *2—3 (expressly providing that ALJ’s “may not
ignore these opinions” and holding that the opinion of a
psychological consultant “may be entitled to greater weight
than a treating source[’]s medical opinion if the State
Agency . . . consultant’s opinion is based on a review of a
complete case record.”); [Tr. 63].
The ALJ followed the
appropriate legal framework, and his opinion to discredit
Dr.
Couch’s
McKeown
and
opinion
Dr.
and
Skaggs
evidence in the record.
assign
was
greater
weight
supported
by
to
Dr.
substantial
Nothing more is required.
Plaintiff’s third argument is that the ALJ improperly
discounted
Plaintiff’s
credibility
as
to
her
statements
regarding the intensity, persistence, and limiting effects
of her symptoms.
ALJ
did
not
Specifically, Plaintiff argues that the
consider
medical
evidence
from
x-rays
that
showed “post-surgical changes to her left arm” which “might
medically explain Ms. Noble’s severe pain.”
[D.E. 15-1 at
19].
An “ALJ’s findings as to a claimant’s credibility
are
entitled
opportunity
to
to
deference,
observe
subjective complaints.”
773 (6th Cir. 2001).
discounting
because
the
of
claimant
the
ALJ’s
and
unique
judge
her
Buxton v. Halter, 246 F.3d 762,
In this case, the ALJ’s reasons for
Plaintiff’s
credibility
15
were
supported
by
substantial evidence in the record; therefore, deference to
his
decision
considered
1)
is
appropriate.
the
fact
that
Specifically,
claimant
has
the
never
ALJ
worked,
raising questions as to whether her current unemployment is
truly
the
result
of
medical
problems;
2)
evidence
of
malingering; 3) the extremity of some of her descriptions
of the severity of her pain, which are unlikely given the
remainder of the record; 4) the fact that Plaintiff only
uses
Advil
and
infrequent
Tylenol
trips
to
the
to
relieve
doctor;
her
6)
pain;
5)
Plaintiff’s
her
self-
reported extensive daily activities, which show that she is
able to do light household chores, some shopping, watch
television, smoke cigarettes, play video games, go out to
eat, visit with family and friends, prepare meals, use a
telephone,
work
puzzles,
read
for
enjoyment,
pay
bills,
count change, and attend to all of her personal needs; and
7)
her
generally
unpersuasive
appearance
and
demeanor.
[Tr. 15—16].
The ALJ was entitled to consider all of these factors
when making a credibility determination.
404.1529(c)(3)
presented,
record,
submitted
(“We
including
your
by
will
information
statements
your
consider
about
treating
or
16
all
about
your
See 20 C.F.R. §
of
your
the
prior
symptoms,
nontreating
evidence
work
evidence
source,
and
observations by our employees.”
Also considered are “daily
activities,” “medication you take,” and “treatment, other
than medication, you receive.”); see also Walters v. Sec’y
of Health & Human Servs., 127 F.3d 525, 532 (6th Cir. 1997)
(citing Blacha v. Sec’y of Health & Human Servs., 927 F.2d
228,
231
(6th
Cir.
1990))
(“An
ALJ
may
also
consider
household and social activities engaged in by the claimant
in
evaluating
ailments”).
a
claimant’s
assertions
of
pain
or
Further, the fact that there was some medical
evidence in the record that “might” support an opposite
conclusion is irrelevant, as it is the function of this
Court to determine whether substantial evidence supported
the ALJ’s decision, not whether the case could have been
decided differently.
Bass v. McMahon, 499 F.3d 506, 509
(6th Cir. 2007) (quoting Foster v. Halter, 279 F.3d 348,
353 (6th Cir. 2001)) (“[W]e do not try the case de novo,
resolve
conflicts
credibility.
in
evidence,
Instead,
determinative
if
there
we
is
or
consider
‘such
decide
the
questions
ALJ's
relevant
of
decision
evidence
as
a
reasonable mind might accept’ as sufficient to support the
ALJ's conclusion.”).
Fourth, Plaintiff argues that the ALJ committed error
by relying on the vocational expert’s [“VE”] testimony, as
Plaintiff
points
out
errors
17
in
her
testimony.
Specifically, Plaintiff argues that the VE’s testimony was
deficient because 1) the hypothetical on which the VE based
her opinion described an individual who could operate a
motor vehicle, although Plaintiff does not have a driver’s
license;
2)
the
hypothetical
relied
on
the
mental
restrictions from Dr. McKeown; and 3) two of the three jobs
that the VE opined that Plaintiff could perform in her
condition
were
hypothetical
not
in
because
compliance
they
assume
with
an
the
individual
ALJ’s
who
is
capable of semiskilled and/or medium work, whereas the ALJ
concluded that Plaintiff is only capable of light unskilled
work.
Her arguments again fall short.
First, although Plaintiff claims in her brief that she
has
“never
been
able
to
obtain
a
driver’s
license
nor
operate any motor vehicle,” Plaintiff admitted in her 2009
hearing that while she doesn’t have her license, she can
drive.
reason
[Tr. 34].
that
she
Further, she admitted that the only
does
not
have
her
driver’s
license
because she cannot afford insurance on a vehicle.
34].
is
[Tr.
There is no indication that this changed between her
2009 hearing and her 2011 hearing, as her only comment
about driving at her 2011 hearing is that she still does
not have a driver’s license.
“fatally
deficient”
error
[Tr. 44].
for
18
the
ALJ
Thus, it was not
to
include
this
information in his hypothetical.
discussed
above,
the
ALJ’s
Second, for the reasons
decision
to
give
significant
weight to Dr. McKeown’s opinion over Dr. Couch’s opinion
was supported by substantial evidence.
Therefore, the ALJ
did not err by including Dr. McKeown’s restrictions in the
hypothetical to the VE.
Moreover, while the Court agrees that two of the jobs
supplied
by
the
hypothetical,
job,
VE
did
Plaintiff
assembly,
is
a
not
does
comply
not
light
with
contest
unskilled
that
job
significant numbers in the national economy.
one
of
the
VE’s
proffered
jobs
aligns
the
ALJ’s
the
third
existing
in
Thus, because
with
Plaintiff’s
restrictions expressed in the hypothetical and exists in
significant numbers in the economy, with 14,000 jobs in the
state
and
740,000
in
the
nation,
the
ALJ
correctly
concluded that there is available work that Plaintiff can
perform in her condition.
See Stewart v. Sullivan, No. 89-
6242, 1990 WL 75248, at *4 (6th Cir. June 6, 1990) (holding
that
125
national
jobs
in
economy
the
was
region
and
significant,
400,000
and,
jobs
thus,
in
there
the
were
jobs available in the national economy for the claimant to
perform).
Therefore, reliance on the VE’s testimony was
not error.
19
Plaintiff’s fifth and final argument is that the ALJ
disregarded the Appeals Council Order of 1/25/2010, which
remanded the case to another ALJ after Plaintiff’s first
hearing.
[Tr. 84—87].
The Appeals Council directed the
ALJ to “give consideration to the examining source opinion,
prepared by Melissa Couch, Ph.D.,” because the first ALJ
entirely
[Tr.
failed
86].
explained
As
in
to
even
mention
discussed
detail
why
Dr.
above,
Dr.
Couch’s
however,
Couch’s
assessment.
ALJ
opinion
Kayser
was
not
supported by objective medical evidence and why he chose to
assign more weight to examining physician Dr. Skaggs and
reviewing
physician
Dr.
McKeown.
Thus,
the
ALJ
gave
consideration to Dr. Couch’s opinion, as instructed by the
Appeals Council.
The fact that he chose to assign greater
weight to other physicians was both in his discretion and
supported by substantial evidence.
V. CONCLUSION
Accordingly,
for
the
reasons
stated
above,
IT
IS
ORDERED:
1) that Plaintiff’s Motion for Summary Judgment [D.E.
15] is DENIED;
2) that the Commissioner’s Motion for Summary Judgment
[D.E. 18] is GRANTED;
20
This the 17th day of July, 2013.
21
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