Holbrook v. SSA

Filing 14

MEMORANDUM OPINION & ORDER: (1) Plt's 10 Motion for summary judgment is DENIED; (2) Dft's 13 Motion for Summary judgment is GRANTED; (3) decision of Commissioner AFFIRMED pursuant to sentence four of 42 USC §405(g) as it was supported by substantial evidence and was decided by proper legal standards; (4) Judgment consistent w/ this Opinion and Order will be entered. Signed by Judge Karen K. Caldwell on 6/27/2014.(STC)cc: COR

Eastern D1Str1ot of lentuaky

F I LED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
JAMES MICHAEL HOLBROOK,

JUN 2 7 201~
AT LEXINGTON
ROBERT R. CARR
CLERK U.S. DISTRICT COURT

CIVIL ACTION NO. 5:13-CV-134-KKC

Plaintiff,

V.

MEMORANDUM, OPINION, & ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,

Drendant.

*** *** ***
Pfaintiff James Michael Holbrook brought this action pursuant to 42 U.s.C. § 405(g)
to obtair judicial review of an administrative decision of the Commissioner of Social
Security! denying his claim for Social Security Disability Insurance ("SSDI") benefits. The
Court,

~aving

reviewed the record, will affirm the Commissioner's decision, as it

IS

supportdd by substantial evidence.

I. FACTUAL AND PROCEDURAL BACKGROUND

,0lbrOOk med his claim for benefits on September 20, 2010, alleging an onset date of
September 24, 2007. (AR 23) His claim was initially denied on December 29, 2010, and
i

again

01 February 15, 2011.

(AR 23). Holbrook then filed a written request for a hearing

before ap Administrative Law Judge ("ALJ"). (AR 23). After the hearing, on January 23,
2012, th¢ ALJ issued an unfavorable decision. (AR 23).

~t the time of the

alleged onset of disability, Holbrook was thirty-one years old. (AR

57). HJ has a high school education, and previously worked as a carpenter and trucker.
(AR 45-~6). Holbrook describes having pain, predominantly in his neck, with numbness on

one hand and in his toes; he also describes pain in his lower back and right knee. (AR 46­
50). Holbrook further testified that he does not sleep well and feels depressed. (AR 50).
In determining whether a claimant has a compensable disability under the Social
Security Act (the "Act"), the regulations provide a five-step sequential process which the
ALl must follow. 20 C.F.R. § 404. 1520(a)-(e); see Walters v. Comm'r of Soc. Sec., 127 F. 3d
525, 529 (6th Cir. 1997). The five steps, in summary, are as follows:
(1) If the claimant is currently engaged in substantial gainful activity, he is not
disabled.
(2) If the claimant is not doing substantial gainful activity, his impairment must be
severe before he can be found disabled.
(3) If the claimant is not doing substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period of at
least twelve months, and his impairment meets or equals a listed impairment, the
claimant is presumed disabled without further inquiry.
(4) If the claimant's impairment does not prevent him from doing past relevant
work, he is not disabled.
(5) Even if the claimant's impairment does prevent him from doing him past
relevant work, if other work exists in the national economy that accommodates his
residual functional capacity and vocational factors (age, education, skills, etc.), he is
not disabled.

Id. The burden of proof is on the claimant throughout the first four steps of the process to
prove that he is disabled. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If the ALJ
reaches the fifth step without finding that the claimant is not disabled, then the burden
shifts to the Commissioner to consider the claimant's residual functional capacity, age,

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education, and past work experience to determine if he could perform other work. If not, he
would be deemed disabled. 20 C.F.R. § 404. 1520(f). Importantly, the Commissioner only
has the burden of proof on "the fifth step, proving that there is work available in the
economy that the claimant can perform." Her v. Comm'r of Soc. Sec., 203 F.3d 388,391 (6th
Cir. 1999).
In this case, the ALJ began his analysis at step one by determining that the
claimant has not engaged in gainful activity since September 24, 2007. (AR 25). At step
two, the ALJ determined that Holbrook suffers from the following severe impairments:
degenerative disc disease of the cervical and lumbar spine, osteoarthritis of the left
acromioclavicular joint, left rotator cuff syndrome, generalized anxiety disorder, depression
and pain disorder. (AR 25). In the third step, the ALJ found that the claimant does not
have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments. (AR 26).
At step four, the ALJ found that based on the medically determinable evidence and
the entire record, Holbrook has the residual functional capacity to perform light work, as
defined in 20 C.F.R. § 404. 1567(b). "He can push/pull with the upper extremities up to the
weight limits of light work. He must avoid climbing ladders, ropes or scaffolds. He can
occasionally climb ramps/stairs and crawL" He can occasionally reach overhead with the
left upper extremity and must avoid concentrated exposure to excessive vibration and
hazards. He can understand simple instructions and can sustain attention for simple tasks
for extended periods of two-hour segments in an eight.hour day with only occasional
concentration problems. He can tolerate supervisors in an object·focused setting and can
adapt to changes as needed. (AR 27). The ALJ further found that Holbrook is unable to
perform any past relevant work. (DE 32).
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At step five, the ALJ concluded that other jobs exist in significant numbers in the
national economy that the claimant can perform, including routing clerk, machine tender,
hand packer, and inspector. (AR 33-34).
The Appeals Commission subsequently denied Holbrook's request for reVIew on
April 25, 2013. Holbrook has exhausted his administrative remedies and filed a timely
action in this Court. This case is now ripe for review under 42 U.S.C. § 405(g).

II. GENERAL STANDARD OF REVIEW
The decision of the Commissioner must be supported by substantial evidence.
Varley v. Sec'y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). Once the
decision of the Commissioner is final, an appeal may be taken to the United States District
Court pursuant to 42 U.S.C. § 405(g). Judicial review of the Commissioner's decision is
restricted to determining whether it is supported by substantial evidence and was made
pursuant to the proper legal standards. See Cullip v. Sec'y of Health and Human Servs., 25
F.3d 284, 286 (6th Cir. 1994). "Substantial evidence" is defined as "more than a 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. Id. In reviewing the decision of the
Commissioner, courts are not to conduct a de novo review, resolve conflicts in the evidence,
or make credibility determinations.

See id.

Rather, the Court must affirm the

Commissioner's decision so long as it is supported by substantial evidence, even if the Court
might have decided the case differently. See Her, 203 F.3d at 389-90. However, the Court
must review the record as a whole, and must take into account whatever in the record fairly
detracts from its weight. Gamer v. Heckler, 745 F.2d 383,387 (6th Cir. 1984).

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III. ANALYSIS
On appeal, Holbrook argues that the ALJ's decision is not supported by substantial
evidence and was not decided correctly for four reasons. (DE 10-1).
1.

Holbrook fust argues that the ALJ "failed to find or even discuss Mr. Holbrook's
diagnosis of sleep apnea."

(DE 10-1, p. 7).

As the United States correctly noted, the

evidence was not before the ALJ at the hearing. CAR 44). Holbrook's counsel did not object
when the ALJ referenced the exhibits in evidence, which did not include the sleep apnea
documentation. (AR 44). Moreover, Holbrook did not testify at the hearing about his sleep
apnea, and his attorney did not question him about it. Holbrook cites 20 C.F.R. § 404.1520
in support of his argument. This section of the Regulations indicates that the ALJ will
consider all evidence in the claimant's "case record." 20 C.F.R. § 404.1520. Exhibit 35,
which provides the evidence concerning sleep apnea, was not in Holbrook's case record at
the time of the hearing; nor was it available to the ALJ at the time he issued his opinion,
and thus, it was not part of the "case record" that he could consider. The burden of proving
disability rests with Holbrook.

Foster u. Halter, 279 F.3d 348, 353 (6th Cir. 20001).

Furthermore, Holbrook has not indicated how such evidence would alter the ALJ's findings.
A diagnosis of sleep apnea does little to indicate how Holbrook would be further impaired
for purposes of social security disability.

Therefore, the ALJ's decision is supported by

substantial evidence.
11.

Next, Holbrook maintains that the ALJ erred in giving greater weight to the opinion
of Dr. Brake, a non-examining psychological reviewer, than to Dr. Genthner and Dr. Ford,
examining, consulting physicians.

(DE 10-1, p. 8). When weighing a medical opinion, a
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variety of factors are considered, including: the examining relationship, the treatment
relationship, the length of the relationship, how consistent the opinion is with the evidence
and record as a whole, the specialty of a doctor, and other factors. 20 C.F.R. § 404. 1527(c).
Holbrook is correct that generally, an examining physician's opinion receives greater weight
than the opinion of a non-examining physician. 20 C.F.R. §404.1527(c)(1). However,

it is not a per se error of law ... for the ALJ to credit a
nonexamining source over a non treating source. Any
record, opinion, even that of a treating source, may be
rejected by the ALJ when the source's opinion is not
well supported by medical diagnostics or if it is
inconsistent with the record. Moreover, an ALJ need
only explain its reasons for rejecting a treating source
because such an opinion carries "controlling weight"
under the SSA Accordingly, a claimant is entitled
under the SSA only to reasons explaining the weight
assigned to his treating sources, independent of the
success of his disability benefits claim.
Norris v. Comm 'r of Soc. Sec., 461 Fed. Appx. 433, 439 (6th Cir. 2012) (emphasis added).
Here, the ALJ gave Dr. Genthner's opinion little weight because it was inconsistent
with the evidence and was unsupported by Holbrook's longitudinal treatment history, as
well as his lack of psychological treatment generally. (AR 31). The ALJ chose to give Dr.
Ford's opinion little weight because it was not supported by the record of evidence and
because Holbrook's counsel referred him to Dr. Ford.

(AR 31).

Moreover, the ALJ

explained that both state agency psychological reviewers, Jay Athy, Ph.D. and Jane Brake,
Ph.D., based their opinions on specific medical evidence and provided explanations for their
opinions.

(AR 31). Thus, the ALJ did not err in choosing to give greater wait to the

opinions of non-examining physicians, and his decision is supported by substantial
evidence.

6

111.

Holbrook next contends that the ALJ improperly relied on the opinions of Drs. Brake
and Athy because he insists these doctors did not give explanations for their opinions and
did not have all the evidence before them when rendering their opinions. (DE 10-1, p. 9).
This argument is also without merit. As explained above and consistent with the factors
described in 20 C.F.R. § 404. 1527(c), the ALJ properly explained why he relied on the
opinions of Drs. Brake and Athy. A review of the record confirms that both Dr. Brake and
Dr. Athy provide explanations for their opinions. (AR 70, 89). Holbrook also complains
that the psychological reviewers did not have certain evidence before them when they
rendered their opinions. However, he fails to explain why the doctors' review of an MRI of
the Lumbar Spine and medical records where he had received injections in his spine would
alter their opinions concerning his alleged mental disabilities or would suggest a further
mental impairment. The ALJ rightly explained why he gave great weight to Drs. Athy and
Brake based on a number of credible factors, and thus, his decision is supported by
substantial evidence.
IV.

Finally, Holbrook maintains that the ALJ erred in giving little weight to Dr. Gutti's
opinion because Dr. Gutti is a neurologist and is a specialist whose opinion should be
afforded greater weight. Generally, a specialist's opinion is afforded more weight than a
non-specialist's opinion, but that is merely one factor the ALJ can consider. 20 C.F.R. §
404.1527(c)(5). As noted above, "Any record opinion, even that of a treating source, may be
rejected by the ALJ when the source's opinion is not well supported by medical diagnostics
or if it is inconsistent with the record."

Norris, 461 Fed. Appx. at 439.

As the ALJ

explained, Dr. Gutti was a non-treating physician who examined Holbrook once at the
7

recommendation of Holbrook's attorney in preparation to file his disability claim. (AR 30).
The ALJ determined that some of Dr. Guitt's recommendations were inconsistent with the
record and medical evidence as a whole. Moreover, the ALJ accepted and adopted some of
the limitations Dr. Gutti recommended.

(AR 30).

Holbrook also contends that Dr.

Hernandez, a reviewing physician whose opinion the ALJ relied heavily upon, is "not as
qualified as Dr. Gutti." There are a variety of factors, however, the ALJ may consider
under 20 C.F.R. § 404.1527(c), and the ALJ properly considered them when he determined
the majority of Dr. Hernandez's opinion was consistent with the record. Therefore, the
ALJ's decision was supported by substantial evidence.
IV. CONCLUSION

Accordingly, the Court HEREBY ORDERS as follows

(1) Plaintiff's motion for summary judgment (DE 10) is DENIED;

(2) Defendant's motion for summary judgment (DE 13) is GRANTED;

(3) The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42

U.S.c. § 405(g) as it was supported by substantial evidence and was decided by proper

legal standards; and

(4)

A judgment consistent

with

this

Opinion

and

Order will

be

entered

contemporaneously.

This 27th day of June, 2014.

Signed By:
Karen K Caldwell

.1
'.

United States District Judge
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