Moore v. SSA

Filing 16

MEMORANDUM OPINION AND ORDER: (1) Pla's 12 Motion for Summary Judgment is DENIED. (2) Dft's 14 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on October 30, 2013. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TAMMY MOORE,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

This

matter

is

before

Civil Case No.
5:13-cv-88-JMH
MEMORANDUM OPINION
AND ORDER

***
the Court

upon

cross-motions

for

Summary Judgment [D.E. 12, 14] on Plaintiff’s appeal of the
Commissioner’s

denial

of

her

application

for

disability

insurance benefits and Supplemental Security Income (SSI). [Tr.
10-23].1

The

Court,

having

reviewed

the

record

and

being

otherwise sufficiently advised, will deny Plaintiff’s motion2 and
grant Defendant’s motion.
I. Overview of the Process and the Instant Matter
The

Administrative

Law

Judge

("ALJ"),

in

determining

disability, conducts a five-step analysis:

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.
2
Plaintiff filed a Motion to Exceed the Page Limit for her
Motion for Summary Judgment, which was granted by this Court.
[D.E. 11]. The Court notes that Plaintiff’s argument could have
been made in compliance with the page limit set forth in General
Order 09-13.

1.
An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant's medical condition.
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
steps of this process to prove that he is disabled." Id.

"If

the analysis reaches the fifth step without a finding that the
claimant

is

Secretary."

not

disabled,

the

burden

transfers

to

the

Id.

In the instant matter, the ALJ determined that Plaintiff
did

not

engage

in

substantial
2

gainful

activity

during

the

relevant time period under step one. [Tr. 16]. Under step two,
the

ALJ

found

that

Plaintiff’s

medically

determinable

impairments of obesity, chronic obstructive pulmonary disease
with restrictive lung disease, and obstructive sleep apnea were
“severe” as defined by the agency’s regulations. [Tr. 16]; 20
CFR

§§

404.1520(c),

Plaintiff’s

knee

416.920(c).

pain,

low

The

back

ALJ

pain,

further

and

found

alcohol

that

abuse

in

remission were “non-severe” impairments. [Tr. 16].
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1. [Tr.
17].

After

further

review

of

the

entire

record,

the

ALJ

concluded at step four that Plaintiff had a residual functional
capacity

(“RFC”)

to

perform

a

limited

range

of

light

and

sedentary work, but that she was unable to perform her past
relevant

work.

[Tr.

17,

21].

The

ALJ

further

found

that

Plaintiff required a clean air environment and could not be
exposed

to

determined

respiratory
that

irritants.

Plaintiff

is

not

[Tr.

17].

disabled

Thus,

under

the

the

ALJ

Social

Security Act. [Tr. 23].
In this appeal, Plaintiff argues that the Commissioner’s
decision is not supported by substantial evidence, that the ALJ
gave improper controlling weight to non-examining state agency
physicians, and that the ALJ failed to give controlling weight
3

to

Plaintiff’s

treating

physicians.

Specifically,

Plaintiff

argues (1) that the ALJ relied on unfounded inconsistencies in
Plaintiff’s

sworn

testimony

to

make

an

adverse

credibility

assessment; (2) the ALJ improperly gave controlling weight to
non-examining state agency physicians who failed to review all
the relevant medical evidence and disregarded well-documented
physical treating sources; and (3) the ALJ failed to provide
good reasons for not giving controlling weight to Plaintiff’s
treating physicians, and, thus, violated the “treating physician
rule.”
II. Standard of Review
In

reviewing

the

ALJ's

decision

to

deny

disability

benefits, the Court may “not try the case de 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) (citations omitted).

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)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec'y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence is more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
4

reasonable

mind

conclusion."

might

accept

as

adequate

to

support

a

Cutlip, 25 F.3d at 286 (citations omitted).

III. Factual and Procedural Background
Plaintiff is currently forty-one years old [Tr. 170] with a
high school education. [Tr. 208]. She has past work experience
as

a

punch

press

operator,

warehouse

laborer,

gas

pump

attendant, cashier, and forklift operator. [Tr. 198, 209, 23637]. Plaintiff filed for a period of disability and disability
insurance benefits under Title II, and for supplemental security
income

(SSI)

under

Title

XVI

on

March

11,

2010,

originally

alleging disability beginning on November 27, 2007 [Tr. 13], but
later amending it to September 1, 2009. [Tr. 33]. The claims
were denied both initially and upon reconsideration. [Tr. 13].
Plaintiff requested a hearing with the ALJ, which took place on
August 18, 2011.

Id.

The ALJ issued an unfavorable decision

denying disability insurance benefits and SSI on November 18,
2011. [Tr. 23].
According
problems

her

to

Plaintiff,

entire

life.

she

[Tr.

has

224].

experienced
Plaintiff

breathing

complains

of

constant breathing problems, precipitated by any sort of daily
activity. [Tr. 225]. Plaintiff currently treats these problems
with

Prednisone

treatment,

[Tr.

35,

Albuterol,

and

239],

home

Combivent

or

oxygen,
Duoneb.

a

nebulizer
[Tr.

240].

Plaintiff has experienced knee and back pain that began with a
5

fall in 1987. [Tr. 224]. Plaintiff claims that she treats this
pain with over-the-counter medications, if she can afford them,
and

has

crutches

and

a

knee

brace

if

needed.

[Tr.

225].

Additionally, Plaintiff continues to smoke a pack of cigarettes
a day [Tr. 52], and is married, but had been separated from her
husband for four years at the time of the hearing. [Tr. 44].
Plaintiff’s treating physician, Dr. Joel Knight, submitted
written

testimony

that

Plaintiff

suffered

from

both

Gastroesophageal Reflux Disease and COPD, both of which require
chronic

medical

therapy.

[Tr.

276].

Plaintiff

received

a

consultative examination in April 2010 from Dr. Jeffery L. Gum.
[Tr. 243]. Dr. Gum noted that Plaintiff could walk 10 minutes
without having to sit, could stand 5-10 minutes without having
to sit, had wheezing throughout her lungs and rhonchi in the
right

lung

field,

and

a

constant

cough

throughout

the

examination. [Tr. 244-45]. Based on the examination, Dr. Gum
found that Plaintiff had a “mild level of limitations in regards
to work-related activities especially in regards to manual labor
with activities including lifting, carrying, handling objects.”
[Tr.

245].

Dr.

Gum

further

found

that

Plaintiff’s

breathing

problems could be managed with her inhalers and steroids. Id. An
RFC assessment of Dr. Gum’s evaluation was performed by a single
decisionmaker
Plaintiff’s

(SDM).
limitations

[Tr.
were

249-56].
only
6

The

partly

SDM

found

supported

by

that
the

examination

performed

by

Dr.

Gum

[Tr.

254]

and

gave

little

weight to Dr. Gum’s opinion as to Plaintiff’s condition. [Tr.
255].
Dr.

Robert

assessment

of

Brown,
Plaintiff

a

state
in

physician,

September

2010

performed
and

an

found

RFC
that

Plaintiff could return to past relevant work. [Tr. 71]. Dr.
Perritt, also a state physician, performed a psychiatric review
of

Plaintiff

and

found

that

there

were

no

mentally

medical

determinable impairments because the “reported depression is due
to physical conditions.” [Tr. 68].
A Vocational Expert, Dr. Jackie Rogers, testified that a
hypothetical person similarly situated to Plaintiff who could
perform light and sedentary work, frequently carrying 10 pounds,
could walk six of an eight hour work day, and who could not be
exposed

to

respiratory

irritants

similar

to

Plaintiff’s

prior

could

work.

[Tr.

not

return

54-55].

to

work

However,

a

person in that situation could perform unskilled work. [Tr. 55].
When this hypothetical person was augmented so that they could
only stand 10 minutes at a time, walk about 50 feet, and must
use a nebulizer eight times a day, there were no jobs that the
hypothetical person could perform. [Tr. 55-56].
Plaintiff is still able to prepare meals, perform household
chores [Tr. 227], grocery shop, and drive twice a month. [Tr.
46]. She also walks her daughter to school each morning and each
7

afternoon, which is a little less than half a mile. [Tr. 47].
Plaintiff claims that she can perform these daily activities,
but experiences labored breathing. [Tr. 45-47].
IV. Analysis
I. The ALJ’s adverse credibility assessment
Plaintiff is supported by substantial evidence.
Plaintiff
Plaintiff’s

first

testimony

argues
at

that
the

the

hearing,

ALJ

of

misunderstood

and

used

this

misinterpretation to make an adverse credibility assessment of
Plaintiff’s

complaints.

“[A]n

ALJ’s

findings

based

on

the

credibility of the applicant are to be accorded great weight and
deference, particularly since an ALJ is charged with the duty of
observing a witness’s demeanor and credibility. Nevertheless, an
ALJ’s assessment of a claimant’s credibility must be supported
by substantial evidence.” Walters v. Comm’r of Social Sec., 127
F.3d 525, 531 (6th Cir. 1997) (citations omitted). The ALJ noted
that, when questioned by the ALJ, Plaintiff stated she required
only

two

questioned

nebulizer
by

treatments

counsel,

a

Plaintiff

day.

However,

stated

that

when
she

further
had

two

nebulizer machines, and took eight to twelve treatments a day.
[Tr. 19, 41, 51]. If this were the only inconsistency the ALJ
relied

upon

in

making

her

adverse

credibility

assessment,

Plaintiff’s argument might have merit. However, the ALJ noted
many other inconsistencies in Plaintiff’s testimony. [Tr. 19-

8

20]. A few of the inconsistencies noted by the ALJ include, that
the claimant testified she separated from her spouse four years
ago, [but] the record contains numerous emergency room visits
precipitated from fights between the two since that time; [s]he
testified that her medications resulted in side effects, [but]
the record fails to corroborate her allegations; she can afford
cigarettes despite her claims that she cannot afford medications
or medical treatment; and that claimant maintains the ability to
perform an impressive array of activities of daily living in
spite

of

her

alleged

impairments

including

caring

for

two

children, ages nine and fifteen years old as well as performing
household chores. [Tr. 19-20]. Thus, the record contains “such
relevant evidence as a reasonable mind might accept as adequate
to

support”

the

ALJ’s

adverse

credibility

determination

of

Plaintiff. Cutlip, 25 F.3d at 286 (citations omitted).
II. The ALJ did not give improper controlling weight
to non-treating physicians.
The Plaintiff argues that the ALJ gave controlling weight
to medical opinions of non-examining state agency physicians and
disregarded

the

medical

opinions

of

Plaintiff’s

treating

physicians. “[A]n opinion from a medical source who has examined
a claimant is given more weight than that from a source who has
not performed an examination (a nonexamining source), and an
opinion from a medical source who regularly treats the claimant

9

(a treating source) is afforded more weight than that from a
source

who

has

examined

the

claimant

but

does

not

have

an

ongoing treatment relationship (a nontreating source).” Gayheart
v. Comm’r of Social Sec., 710 F.3d 365, 375 (6th Cir. 2013)
(citations omitted).
Plaintiff specifically contends that “the ALJ improperly
appears to give controlling weight to medical opinions rendered
by non-examining state agency physicians who never examined Ms.
Moore

and

who

failed

to

review

all

the

relevant

medical

evidence.” [D.E. 12-1 at 2, 18]. The state agency physicians
Plaintiff refers to are Dr. Brown and Dr. Perritt. Id. However,
Plaintiff does not cite to any portion of the ALJ’s opinion
where the ALJ discussed the September 28, 2010 report issued by
Dr.

Brown

or

the

September

27,

2010

report

issued

by

Dr.

Perritt. [Tr. 68, 71]. Additionally, the Court has found no
reference to this report in the ALJ’s opinion.
Rather, Plaintiff appears to be arguing that because the
ALJ found that Plaintiff could perform light work, as did the
state agency physicians, the Court should assume that the ALJ
gave controlling weight to those opinions. The record fails to
support this assertion. The ALJ went through a detailed review
of Plaintiff’s past medical tests, her daily activities, and the
evidence offered by physicians in coming to the determination
that

Plaintiff

could

perform

light
10

and

sedentary

work

with

environmental limitations. [Tr. 20-21]. Specifically, the ALJ
relied on the following: “the record reflects few emergency room
visits for respiratory illness, but numerous visits for other
minor

impairments;

.

.

.

[o]bjective

testing

also

fails

to

corroborate the claimant’s allegations of disabling respiratory
impairments; the claimant walks approximately one-half a mile
two times a day to take her daughter to and from school; [s]he
also retains an impressive array of activities of daily living;
. . . [t]he state [sic] of the claimant’s treating physician,
Dr. Knight, that she requires nebulizer treatments have been
considered by the [ALJ] but do not establish the claimant is
disabled

and

do

not

constitute

an

opinion

she

is

unable

to

work.” [Tr. 20-21]. There is no evidence that the ALJ relied on
the opinions of Dr. Brown or Dr. Perritt, let alone that she
gave them controlling weight. Rather, the record shows that the
ALJ properly considered the record as a whole in coming to the
determination

that

Plaintiff

could

perform

light

work

activities.
III. The ALJ did not improperly weigh
opinions of the treating physicians.

the

medical

Finally, Plaintiff argues that the ALJ failed to provide
good

reasons

for

refusing

to

give

Plaintiff’s

treating

physicians controlling weight. “Treating-source opinions must be
given ‘controlling weight’ if two conditions are met: (1) the

11

opinion is ‘well-supported by medically acceptable clinical and
laboratory diagnostic techniques’; and (2) the opinion ‘is not
inconsistent with the other substantial evidence in the case
record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376
(6th Cir. 2013) (quoting 20 C.F.R. § 404.1527(c)(2)). When good
reasons are not provided for the weight given to a treating
physician opinion, the court may remand. Id. at 380 (citations
omitted).
In this case, the ALJ did not refuse to give controlling
weight to Dr. Knight’s opinion. Rather, the ALJ found that Dr.
Knight did not express an opinion as to Plaintiff’s ability to
work. [Tr. 21]. The ALJ explicitly stated “that none of the
claimant’s treating physicians opined she was unable to work.”
[Tr. 21]. An ALJ cannot refuse to give controlling weight to an
opinion

that

assessment

was

never

completed

by

given.
Dr.

Plaintiff

Knight,

references

claiming

that

an

RFC

it

was

completed on January 18, 2011. [D.E. 12-1 at 15]. However, this
RFC was not completed until January 26, 2012. [Tr. 603]. That
was also the first time Dr. Knight had discussed the length of
time it would take Plaintiff to perform the nebulizer treatment.
[Tr.

605].

Plaintiff

At

had

the

time

commented

the
on

ALJ

the

issued

length

of

her

opinion,

time

it

only

took

to

complete a nebulizer treatment. [Tr. 21] (“Although the claimant
testified it took approximately thirty to 45 minutes for each
12

nebulizer treatment, Dr. Knight did not comment on this aspect
of the claimant’s allegation and there is no support for it
contained in the medical evidence of record.”). As Dr. Knight
submitted the RFC and information on the time it would take to
perform a nebulizer treatment well after the ALJ issued her
opinion in this matter, this particular information “cannot be
considered

part

of

the

record

for

purposes

of

substantial

evidence review.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir.
2001).
The

ALJ

found

that

all

Dr.

Knight

expressed

was

that

Plaintiff had to perform a nebulizer treatment eight times a
day.

However,

the

ALJ

found

that

the

entire

record

and

Dr.

Knight’s own treatment notes failed to support that Plaintiff
actually

used

the

nebulizer

eight

times

a

day.

[Tr.

21].

Furthermore, the ALJ noted that Dr. Knight stated that Plaintiff
required
treatment

the

use

notes

of

home

indicated

oxygen,
that

but

the

that

home

Dr.

oxygen

Knight’s
provided

own
no

relief to Plaintiff. [Tr. 21].
Further, Plaintiff relies on a hypothetical question posed
to the Vocational Expert Dr. Jackie Rogers. Dr. Rogers testified
that if Plaintiff used a nebulizer machine eight times a day and
it

took

would

be

forty-five
no

jobs

minutes
Plaintiff

to

perform

could

each

perform.

treatment,
However,

there

the

ALJ

explicitly found that there was no evidence in the record to
13

support that it took Plaintiff forty-five minutes to perform
each treatment. [Tr. 21].
“The regulation requires ALJs to look to the record as a
whole

–

not

just

to

medical

opinions

–

to

decide

whether

substantial evidence is inconsistent with a treating physician’s
assessment.” Hickey-Haynes v. Barnhart, 116 F. App’x 718, 723-24
(6th Cir. 2004) (citations omitted). When looking at the record
as a whole, the Court finds that the ALJ complied with the
treating physician rule. This is especially true given that none
of

the

treating

physicians

actually

expressed

an

opinion

on

Plaintiff’s ability to work.
V. Conclusion
Accordingly, based on the foregoing, IT IS ORDERED:
(1)

that Plaintiff’s Motion for Summary Judgment [D.E. 12]

be, and the same hereby is, DENIED;
(2)

that Defendant’s Motion for Summary Judgment [D.E. 14]

be, and the same hereby is, GRANTED.
This the 30th day of October, 2013.

14