Reid v. SSA

Filing 11

ORDER: (1) Pla's 9 Motion for Summary Judgment is DENIED. (2) Dft's 10 Motion for Summary Judgment is GRANTED. (3) JUDGMENT in favor of the Dft will be entered contemporaneously with this Memorandum Opinion and Order. (4) Clerk shall STRIKE this case from the Court's active docket. Signed by Judge Amul R. Thapar on June 25, 2013. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
WILLIAM REID,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Civil No. 13-36-ART

ORDER

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The plaintiff, William Reid, brought this action under 42 U.S.C. §§ 405(g)1 and
1383(c)(3) to obtain judicial review of the Commissioner’s decision to deny him disability
insurance benefits. R. 1 at 1. Because substantial evidence in the record supports the
Administrative Law Judge’s decision, Reid’s motion for summary judgment, R. 9, is denied
and the Commissioner’s motion for summary judgment, R. 10, is granted.
BACKGROUND
Reid filed an application for disability insurance benefits on January 31, 2008. R. 7-1
at 214 (Admin. Tr. at 210 [hereinafter Tr.]). To receive disability benefits, an applicant must
have “insured status,” which he attains by meeting a statutory earnings requirement. See 42
20 C.F.R. § 404.101 et seq.; Social Security Administration, Program Operations Manual
System RS 00301.101, https://secure.ssa.gov/poms.nsf/lnx/0300301101.

Since Reid’s

insured status expired on March 31, 2007, he had to establish that he became disabled on or
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Reid cited 42 U.S.C. § 405(a) in his complaint, R. 1 at 1, but section 405(g) is the proper basis for the Court’s
jurisdiction over this matter.

before that date to qualify for benefits. R. 7-1 at 21 (Tr. at 17). Reid claimed that he has
been unable to work since May 15, 2001. R. 7-1 at 21 (Tr. at 17). His alleged disabilities
include problems with his left knee, left shoulder, and back; carpal tunnel syndrome;
hypertension; and obesity.

Id. at 23–24 (Tr. at 19–20).

After the Social Security

Administration denied Reid’s application, id. at 123 (Tr. at 119), 127 (Tr. at 123), Reid
requested a hearing before an Administrative Law Judge (ALJ). Id. at 131 (Tr. at 127). The
ALJ also denied Reid’s claim. Id. at 105 (Tr. at 101). Upon remand from the Appeals
Council, id. at 119 (Tr. at 115), the ALJ conducted a second hearing on August 8, 2011. Id.
at 21 (Tr. at 17).
Applying the five-step sequential evaluation process used in Social Security
decisions, see 20 C.F.R. § 404.1520; Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th
Cir. 2003), the ALJ once again concluded that Reid did not qualify for disability insurance
benefits between his alleged disability onset date in 2001 and his insured status expiration
date in 2007. R. 7-1 at 22–29 (Tr. at 18–25). First, the ALJ found that Reid had not engaged
in substantial gainful activity during the relevant period. Id. at 23 (Tr. at 19). While Reid
had continued to engage in fencing, shoveling, baling, and other farm work, the ALJ
determined that this labor did not rise to the level of substantial gainful activity. Id. Second,
Reid had severe impairments, namely (1) degenerative joint disease of the left knee status
post two arthroscopic surgeries for anterior cruciate ligament repairs and meniscectomy; (2)
status post left shoulder acromioplasty; (3) degenerative disc disease of the lumbar spine; (4)
hypertension; and (5) mild obesity. Id. at 23–24 (Tr. 19–20). Third, Reid’s impairments did
not meet or equal one of the Commissioner’s listed impairments. Id. at 24 (Tr. at 20).
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Fourth, Reid retained the residual functional capacity to perform a reduced range of light
work through his insured status expiration date, although he was unable to perform any of his
past relevant work. Id. at 24–27 (Tr. at 20–23). Finally, given Reid’s age, education, work
experience, and residual functional capacity, the ALJ found that he could have performed
jobs that existed in significant numbers in the national economy. Id. at 27–28 (Tr. at 23-24).
The ALJ therefore determined that Reid was not disabled for the purposes of
disability insurance benefits during the relevant period. Id. at 29 (Tr. at 25). The Appeals
Counsel denied Reid’s request for review of the ALJ’s decision, id. at 5 (Tr. at 1), and Reid
filed his complaint in this Court, R. 1.
DISCUSSION
Reid raises several issues in his motion for summary judgment: (1) whether the ALJ
gave appropriate weight to the opinion of the treating physicians and included adequate
reasoning on this subject in his decision; (2) whether the ALJ sufficiently considered the
combined effects of Reid’s impairments; (3) whether the ALJ considered the durational
requirement of substantial gainful activity; and (4) whether a reasonable person could
conclude that Reid is not disabled in light of the total medical evidence. R. 9-1 at 1–2.
Under the Social Security Act, the Court conducts a limited review of the
Commissioner’s decision. 42 U.S.C. § 405(g). The Court may only evaluate whether the
ALJ applied the correct legal standard and made factual findings that are supported by
substantial evidence in the record. Id.; see also Rabbers v. Comm’r of Soc. Sec. Admin., 582
F.3d 647, 651 (6th Cir. 2009) (articulating the same standard for judicial review by the court
of appeals). Substantial evidence means “more than a scintilla of evidence but less than a
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preponderance” and includes “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). In assessing the evidence and the ALJ’s decision, the Court cannot “try
the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.”
Id.; see Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). The ALJ’s decision survives
such review.
I.

The ALJ’s Decision To Discount the Medical Opinions of Drs. Cervoni and
Picon
Reid alleges that the ALJ’s decision improperly discounted medical opinions rendered

by two of his treating physicians, Dr. Thomas Cervoni and Dr. Dora Picon. R. 9-1 at 1–2.
Generally speaking, a treating physician’s opinion that is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and [consistent with] other
substantial evidence” must be given controlling weight. 20 C.F.R. § 404.1527(c)(2). When
an ALJ does not give a treating physician’s opinion controlling weight, he must do two
things. First, he must provide “good reasons” for why the treating physician’s opinion does
not deserve controlling weight. Id.; see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004) (noting that an ALJ must provide “good reasons for not giving weight to
a treating physician in the context of a disability determination” (internal quotation marks
omitted)). Second, he must explain what weight, if any, the treating physician’s opinion does
deserve. See 20 C.F.R. § 404.1527(c)(2). The relevant factors are the length, frequency,
nature, and extent of the treatment relationship; the evidence supporting the opinion; the
consistency of the opinion with the records as a whole; and the physician’s specialization.
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Id. § 404.1527(c)(2)–(c)(6); see also Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).
While an ALJ must consider all of these factors, he need not provide “an exhaustive factorby-factor analysis” in his decision. Francis v. Comm’r of Soc. Sec. Admin., 414 F. App’x
802, 804 (6th Cir. 2011).
The ALJ in this case gave good reasons for why he assigned less than controlling
weight to Dr. Thomas Cervoni’s opinion of Reid’s residual functional capacity. Dr. Cervoni
began treating Reid in 1999 for knee, shoulder, and back problems. R. 7-1 at 398 (Tr. at
394). On March 28, 2009, Dr. Cervoni evaluated Reid’s residual functional capacity. Id. at
518-22 (Tr. at 514–18). Dr. Cervoni opined that Reid could walk fewer than three blocks
without rest and could sit or stand for no more than thirty minutes continuously. Id. at 519
(Tr. at 515). In an eight-hour working day, Reid could stand or walk for about two hours and
sit for at least six hours. Id. at 520 (Tr. at 516). According to Dr. Cervoni, Reid required a
job that permitted him to shift positions at will, and he needed to take unscheduled breaks
intermittently during the workday. Id. He could lift ten pounds frequently and twenty
pounds occasionally; reach his arms fifty percent of the time; stoop for twenty-five percent of
the workday; and crouch at no time. Id. at 521 (Tr. at 517). Dr. Cervoni estimated that Reid
would miss work more than four times a month as a result of his impairments. Id.
The ALJ found these limitations unsupported by the record before March 31, 2007.
Id. at 26 (Tr. at 22). First, the ALJ noted that Dr. Cervoni’s assessment occurred over two
years after Reid’s insured status expiration date and that Reid’s physical condition had
changed substantially during that period. Id. Dr. Cervoni stated in June 2007, just after the
insured status expiration date, that Reid had a full range of motion in his right knee and
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active range of motion in his left knee and that he hoped to “postpone the need for a totalknee arthroplasty for several years.” Id. at 26 (Tr. at 22); id. at 392 (Tr. at 388). By July
2008, however, Reid required a total-knee replacement. Id. at 26 (Tr. at 22); id. at 71 (Tr. at
67).

Dr. Cervoni did not write his report until March 2009, well after Reid’s further

deterioration and additional surgery. This is, in itself, a good reason for discounting Dr.
Cervoni’s 2009 opinion: evidence of problems that developed after an applicant’s insured
status expiration date cannot support a finding of disability under the Social Security Act.
See, e.g., Clendening v. Comm’r of Soc. Sec., 482 F. App’x 93, 95 (upholding an ALJ
decision that rejected post-hoc medical opinions concerning the onset date of the plaintiff’s
disability).
Second, the ALJ cited contradictory evidence in the record indicating that Reid had
been capable before March 31, 2007, of engaging in the type of physical activity that Dr.
Cervoni’s assessment proscribed. For example, Reid performed substantial work on his
family farm; he tended livestock, fenced the property, shoveled, and baled hay. Id. at 26 (Tr.
at 22); see id. at 399 (Tr. at 395). He went deer hunting as recently as 2004. Id. at 399 (Tr.
at 395). And, in 2007, he received a clean bill of health when he applied for a commercial
driver’s license. Id. at 26 (Tr. at 22); id. at 482–83 (Tr. at 478–79). Third, the ALJ
determined that the findings of state agency physicians who reviewed Reid’s medical records
were entitled to “significant weight” because they were consistent with other medical
evidence in the record. Id. at 27 (Tr. at 23); id. at 431–38 (Tr. at 427–42). This too
undermined the reliability of Dr. Cervoni’s assessment, and, for these reasons, the ALJ did
not grant Dr. Cervoni’s opinion controlling weight.
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The Court must next ask whether the ALJ described the weight he actually gave Dr.
Cervoni’s opinion, as required by 20 C.F.R. § 404.1527(c)(2). The ALJ did just that. He
explicitly endorsed his earlier, vacated decision in this case to the extent that it assigned
weight to Dr. Cervoni’s assessment of Reid’s residual functional capacity. R. 7-1 at 26 (Tr.
at 22); see also Cole, 661 F.3d 931, 938 (stating that when an ALJ correctly determines the
weight to give a treating physician’s opinion in an earlier decision, he need not repeat his
analysis in a subsequent decision). In that vacated decision, the ALJ gave “some weight” to
Dr. Cervoni’s opinion, but he rejected any part of it that conflicted with evidence that
predated Reid’s insured status expiration date. Id. at 112 (Tr. at 108). And, in the decision at
issue here, the ALJ substantiated his skepticism of the relevance of Dr. Cervoni’s 2009
opinion to Reid’s condition in 2007 with additional evidence from the record. Id. at 26 (Tr.
at 22).

Thus, the ALJ appropriately fulfilled his duties under the regulations, and his

decision is supported by substantial evidence.
Reid also takes issue with the ALJ’s total rejection of Dr. Picon’s diagnosis of carpal
tunnel syndrome based on nerve conduction studies she performed on May 6, 2009. See id.;
id. at 523–26 (Tr. at 519–22). But, substantial evidence in the record also exists to justify the
ALJ’s decision.

Reid was not diagnosed with carpal tunnel syndrome before March 31,

2007. See id. at 26 (Tr. at 22). On this ground, the ALJ found that Reid’s carpal tunnel
syndrome was not a severe impairment during the relevant period. Id; see also id. at 120 (Tr.
at 116) (remanding the case to the ALJ because his first opinion erroneously considered
carpal tunnel syndrome a severe impairment during the relevant period).

Once again,

evidence of impairment that postdates an applicant’s insured status expiration date typically
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cannot justify a finding of total disability. See, e.g., Clendening, 482 F. App’x at 95. Thus,
the ALJ gave no weight to Dr. Picon’s report. See R. 7-1 at 26 (Tr. at 22). The ALJ properly
discharged his duty as to Dr. Picon’s report, see 20 C.F.R. § 404.1527(c), and there is
substantial evidence in the record to confirm his finding.
II.

The Combined Effect of Reid’s Impairments
Reid’s second objection to the ALJ’s decision is that the ALJ did not consider

whether the cumulative effect of his impairments was severe enough to render him disabled.
R. 9-1 at 2. For this proposition, Reid cites Walker v. Secretary of Health and Human
Services, 980 F.2d 1066 (6th Cir. 1992). R. 9-1 at 3. It is correct—as 20 C.F.R. §§
404.1520(a)(4)(ii) and 404.1523 mandate and Walker confirms—that an ALJ must consider
the combined impact of impairments as part of the five-step sequential disability evaluation.
See Walker, 980 F.2d at 1071. Still, Reid misunderstands the import of Walker and its
relevance to his case.
Walker concerned a disability claim based on two impairments: a back injury and
severe depression. Id. at 1067. Separately, neither impairment could justify a finding of
disability. Id. at 1069. A vocational expert testified that the two impairments collectively
precluded the applicant from returning to the workplace. Id. at 1071. Still, the ALJ based
his decision on medical evidence of each impairment in isolation and ruled that the applicant
was not disabled. Id. On review, the United States Court of Appeals for the Sixth Circuit
found that the ALJ had failed to consider the combined impact of the applicant’s two
impairments in violation of 20 C.F.R. § 404.1523. Id. at 1071.

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The problem with Reid’s argument is that the ALJ in this case made none of the
Walker ALJ’s fatal errors. First, the ALJ explicitly stated that Reid’s “impairments in
combination” were severe within the meaning of the Social Security Act. R. 7-1 at 24 (Tr. at
20) (emphasis added); see also 20 C.F.R. § 404.1523 (requiring an ALJ to consider the
combined effect of impairments for the first time when determining whether an applicant’s
impairments are severe).

Second, the ALJ considered the combined impact of Reid’s

impairments throughout the remainder of his analysis. See 20 C.F.R. § 404.1523 (providing
that if an ALJ “do[es] find a medically severe combination of impairments, the combined
impact of the impairments will be considered throughout the disability determination
process”). For instance, the combined impact was a factor in deciding whether Reid’s
impairments met or medically equaled the severity of an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. See R. 7-1 at 24 (Tr. at 20) (adopting the discussion of the
medical evidence of record in the ALJ’s first decision in this case); id. at 110–11 (Tr. at 106–
07) (specifically considering the combined impact of obesity and other impairments).
Similarly, the ALJ’s evaluation of Reid’s residual functional capacity considered all of his
impairments in tandem. Id. at 24–27 (Tr. at 20–23).
Most importantly, unlike the ALJ in Walker, the ALJ in this case permitted the
vocational expert to consider the combined effect of Reid’s impairments when inquiring
whether jobs that Reid could have performed existed in significant numbers in the national
economy. In Walker, the ALJ rejected testimony by the vocational expert concerning the
combined impact of the applicant’s impairments on his ability to work. Walker, 980 F.2d at
1071. In contrast, the ALJ in this case posed a series of hypothetical questions to the
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vocational expert that incorporated all of Reid’s physical limitations. R. 7-1 at 58–61 (Tr. at
54–57). The questions an ALJ asks a vocational expert can indicate that he adequately
considered the combined effect of an applicant’s impairments before reaching his decision.
See Catron v. Astrue, No. 8-110-DCR, 2008 WL 4304502, at *5–*6 (E.D. Ky. Sept. 18,
2008). Here, the ALJ’s questions—and the fact that he later adopted the vocational expert’s
assessment of Reid’s job prospects, R. 7-1 at 28 (Tr. at 24)—demonstrate that he fully
explored the cumulative impact of Reid’s impairments.
III.

The Durational Requirement of Substantial Gainful Activity
Reid next questions whether the ALJ considered “the durational requirement of

substantial gainful activity and not merely the ability to find a job and physically perform it.”
R. 9-1 at 2. At no point, however, does Reid develop the meaning of this statement or
present evidence in support of his position. The Court’s standing order for social security
benefits cases prohibits plaintiffs from making general allegations without providing specific
evidence for their claims. See R. 8 at 3–4 (The Court “will not formulate arguments on the
parties’ behalf,” and parties must “provide the Court with specific page citations to the
record to support their arguments.”). Where a party has raised an argument “in the most
skeletal way, leaving the court to . . . put flesh on its bones,” the Court is justified in deeming
the argument waived. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (internal
quotation marks omitted); see R. 8 at 4 (“Failure to provide specific citations to the record
may constitute grounds for denial of the motion.”).
Even if Reid had properly developed this argument, it would not make any difference:
this issue is not germane to his case. The first step of the five-step sequential evaluation used
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in disability benefits cases is to inquire whether the applicant is “doing substantial gainful
activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1571 et seq. The substantial gainful activity
analysis does include some discussion of the duration of employment. See, e.g., 20 C.F.R.
§§ 404.1574(a)(1) (indicating that work an applicant stops abruptly due to his impairment is
generally considered an unsuccessful work attempt); 404.1574a (prescribing when and how
earnings will be averaged over an applicant’s entire period of work). Regardless, none of
this matters to the outcome of this case. Because the ALJ found that Reid did not engage in
substantial gainful activity during the relevant period, R. 7-1 at 23 (Tr. at 19), and because
neither the government nor Reid apparently contests this finding, there is no need to consider
whether the ALJ properly considered a so-called “durational requirement” in his substantial
gainful activity analysis.
IV.

Could a Reasonable Person Conclude that Reid Is Not Disabled?
Reid’s final request is that the Court decide whether “a reasonable person could

conclude and justify that plaintiff is not disabled in light of the substantial limitations
assigned by the treating physician, supported by overwhelming evidence of a lifetime of such
difficulties and further evaluation of the consultative physician.”

R. 9-1 at 2.

This,

unfortunately for Reid, is not the inquiry the Court must make. When reviewing social
security disability determinations, the Court asks only whether the ALJ applied the correct
legal standard and made factual findings that are supported by substantial evidence in the
record. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Cutlip, 25 F.3d at 286. For the

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reasons described above, the ALJ’s decision in this case applies the correct legal standards
and makes factual findings underwritten by substantial evidence in the record.
CONCLUSION
Accordingly, it is ORDERED that:
(1) The plaintiff’s motion for summary judgment, R. 9, is DENIED.
(2) The defendant’s motion for summary judgment, R. 10, is GRANTED.
(3) JUDGMENT in favor of the defendant will be entered contemporaneously with
this Memorandum Opinion and Order.
(4) The Clerk shall STRIKE this case from the Court’s active docket.
This the 25th day of June, 2013.

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