Browning v. SSA
Filing
13
MEMORANDUM OPINION & ORDER: (1) DENYING pla's 10 Motion for Summary Judgment; (2) GRANTING dft's 12 Motion for Summary Judgment. Signed by Judge Joseph M. Hood on 7/21/14.(KJR)cc: COR , pla (US Mail); Modified text on 7/21/2014 (KJR).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TONY BROWNING,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
***
This
Summary
matter
Judgment
Commissioner’s
is
before
[DE
10,
denial
of
Civil Action No.
5:13-CV-316-JMH
MEMORANDUM OPINION
AND ORDER
***
the
12]
his
***
Court
on
upon
cross-motions
Plaintiff’s
application
appeal
for
of
for
the
disability
insurance benefits and supplemental security income benefits.
[Tr. 9-20].1
The Court, having reviewed the record and being
otherwise sufficiently advised, will deny Plaintiff’s motion and
grant Defendant’s motion.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
(ALJ),
in
determining
disability, must conduct 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 summary judgment motions.
Rather, it is a procedural device by which the parties bring the
administrative record before the Court.
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
not
Secretary.”
The
the
burden
transfers
to
the
Id.
ALJ
substantial
disabled,
determined
gainful
that
activity
Plaintiff
since
March
had
15,
not
2010
engaged
[Tr.
in
14].
Considering step two, the ALJ found that Plaintiff possessed
several “severe” impairments, including chronic neck, mid and
2
low
back
pain
with
multiple
levels
of
bulging
discs,
and
bilateral shoulder degenerative joint disease with supraspinatus
tendinopathy
[Tr.
14];
20
C.F.R.
§§
404.1520(c),
416.920(c).
During step three of the analysis, the ALJ concluded that none
of
the
Plaintiff’s
impairments
or
combinations
of
his
impairments met the severity listed in 20 C.F.R. pt. 404, subpt.
P, app. 1 [Tr. 16].
At
step
residual
defined
four,
the
functional
by
Plaintiff
20
was
ALJ
capacity
determined
(RFC)
that
to
C.F.R.
§§
to
tasks
perform
404.1567(b),
limited
with
Plaintiff
light
416.967(b).
no
climbing
had
work
a
as
However,
of
ropes,
ladders or scaffolds; no more than occasional climbing of stairs
and ramps, no work with hands over the head; and no exposure to
temperature
hazards.
entry
wetness,
excess
humidity
or
industrial
Further, the ALJ found that Plaintiff was limited to
level
frequent
extremes,
work
changes
with
in
simple
work
repetitive
routines
[Tr.
procedures
17].
While
and
the
no
ALJ
considered a possible brain injury Plaintiff sustained when he
was 26 years old, such an injury would have predated Plaintiff’s
successful work history and collegiate coursework [Tr. 18].
The
ALJ also determined that Plaintiff had at least a high school
education, could communicate in English, and at 51 years old was
“closely
approaching
advanced
age”
on
the
alleged
disability
onset date under 20 C.F.R. §§ 404.1564, 416.963 [Tr. 18].
3
The ALJ found that Plaintiff was unable to perform any of
his past relevant work because he was previously required to
lift and carry more than 20 pounds [Tr. 18].
However, there
were jobs in the national economy that existed in significant
numbers
that
Plaintiff
could
currently
perform
[Tr.
18].
Therefore, the ALJ concluded that Plaintiff was not disabled
under sections 216(i) and 223(d) of the Social Security Act [Tr.
19].
On
appeal,
Plaintiff
argues
that
the
ALJ
erred
in
determining that he retained the RFC to perform light work, and
that he is limited to performing no more than sedentary work.
An
RFC
of
sedentary
work
would
result
in
a
disabled
classification under 20 C.F.R. pt. 404, subpt. P, app. 2 due to
Plaintiff’s age and work skills.
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
4
legal standards in reaching his 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
support
as
a
a
reasonable
conclusion."
mind
might
Cutlip,
25
accept
F.3d
at
as
adequate
286
to
(citations
omitted).
III. Factual and Procedural Background
Plaintiff was 51 years of age at the alleged disability
date and has a high school education [Tr. 18].
Plaintiff has
past work experience as an aluminum pourer, weekend order filler
for Wal-Mart, and in roofing and construction.
He also loaded
plastic parts and assembled vacuum cleaners for Panasonic [Tr.
29-30, 33-34].
Plaintiff attended community college for two
years after working for Panasonic [Tr. 35].
Plaintiff filed for a period of disability and disability
insurance benefits, alleging disability beginning on March 15,
2010 [Tr. 156].
for
supplemental
Plaintiff also filed a Title XVI application
security
income
(SSI),
again
disability beginning on March 15, 2010 [Tr. 160].
alleging
Plaintiff’s
claims were denied initially and upon reconsideration [Tr. 106109, Tr. 113-118].
Plaintiff then requested a hearing with an
ALJ, which occurred on March 21, 2012 [Tr. 24-59].
The ALJ
issued an unfavorable decision denying Plaintiff’s claims for
5
benefits on March 30, 2012 [Tr. 9-20].
Plaintiff then filed a
Request for Review, which was denied on April 23, 2013 [Tr. 36].
This appeal followed.
Plaintiff reports that he experiences chronic pain in his
shoulders, arms, back, and neck [Tr. 182-83].
Plaintiff claims
that he has to go to sleep to escape the pain because he cannot
afford his medicine [Tr. 42].
Plaintiff’s sister testified that
he mostly lies around [Tr. 47], and Plaintiff averred that he
cannot cook, clean, drive, or shop [Tr. 38, 197].
He can walk
around the outside of his house, but cannot move his arms while
doing so [Tr. 42].
Plaintiff claims that he does not leave his
house, and his nephew cleans up for him and allows him to live
in an apartment rent-free [Tr.42-3].
medical
evidence
of
record
There is no significant
documenting
claimant’s various complaints [See Tr. 15].
treatment
for
the
Plaintiff claimed
that he did not have the money to see a doctor [Tr. 192], but
had recently starting seeing Dr. Belanger because “he’s cheapest
and lets you owe him” [Tr. 36-7].
Plaintiff
underwent
a
consultative
examination
with
Southern Medical Group, Inc. on October 16, 2010 [Tr. 226-28].
A physical examination of Plaintiff revealed no neck tenderness,
regular heart rate and rhythm, and no musculoskeletal structural
deformity.
Plaintiff was able to rise from a sitting position
without assistance and bend and squat without difficulty, and
6
Plaintiff’s grip was a 5/5. Plaintiff was alert and oriented to
time,
place,
and
situation,
depressed or anxious.
and
showed
no
signs
of
being
Plaintiff’s cervical spine x-ray showed
evidence of disc space narrowing and degeneration at the C6-C7
level [Tr. 227].
with
chronic
The consultative examiner diagnosed Plaintiff
shoulder
pain
and
degenerative
change
of
the
cervical and thoracic spine, determining that Plaintiff should
be able to “sit, walk, and/or stand for some part of a full
workday,
lift/carry
limitations,
hold
objects
a
less
conversation,
than
15
respond
pounds
without
appropriately
questions, [and] carry out and remember instructions.”
to
[Tr.
228].
Plaintiff
sought
treatment
of
shoulder
pain
at
the
Ft.
Logan Hospital emergency room in September 2010, reporting no
primary care physician.
[Tr. 434].
It appears that Plaintiff
was also treated at Ephraim McDowell Regional Medical Center in
September 2010, with a complaint of “shoulder pain since March.”
There, he was prescribed Flexeril and Lodine [Tr. 436].
In
February 2011, Plaintiff visited Central Baptist Hospital with
complaints of chest pain lasting longer than two weeks [Tr.
239].
A stress test was performed, which was negative with
normal systolic blood pressure response [Tr. 326].
was
diagnosed
with
chest
pain
and
obesity
[Tr.
Plaintiff
15].
After
treatment at the Garrard Clinic in April 2011, Plaintiff was
7
found to have no acute fracture, malalignment, or dislocation.
There was also no acute soft tissue or articular abnormality
[Tr. 456-7].
Plaintiff most recently saw Dr. Belanger on November 8,
2011 at the Paint Lick Family Clinic. Plaintiff complained of
body aches, and an MRI of the cervical spine showed multilevel
degenerative changes with bulging and uncinate hypertrophy.
An
MRI of the right shoulder showed AC joint osteoarthrosis and
tendinopathy.
Plaintiff was not taking any medications at that
time [Tr. 15, 464-71].
Plaintiff
capacity
underwent
assessment
a
(RFC)
physical
by
Single
residual
Decision
Tingle on November 10, 2010 [Tr. 64-66].
while
Plaintiff
occasionally
had
lift
exertional
20
pounds
functional
Maker
Yolande
Tingle found that
limitations,
he
could
frequently
lift
10
and
still
pounds.
Plaintiff could also stand, walk or sit for about 6 hours, but
his
ability
to
extremities.
limitations
push
Plaintiff
due
to
his
or
pull
was
also
had
left
shoulder
narrowing and pain [Tr. 64-5].
limited
postural
in
and
moderate
the
upper
manipulative
joint
space
Ultimately, Tingle opined that
Plaintiff was not disabled [Tr. 67].
Dr. Reed conducted an RFC assessment on May 10, 2011 [Tr.
89-93].
Reed also found that Plaintiff could occasionally lift
20 pounds and frequently lift 10 pounds, and that Plaintiff
8
could stand, walk or sit for about 6 hours [Tr. 89].
Reed found
postural limitations due to back and neck pain [Tr. 90], but
also determined that Plaintiff was not disabled [Tr. 92].
Vocational
expert
Ms.
Joyce
Forrest
hearing before the ALJ [Tr. 51-57].
testified
at
the
Ms. Forrest testified that
a person with a light exertional level RFC equivalent to the
ALJ’s
finding
for
Plaintiff
would
not
Plaintiff’s past relevant work [Tr. 55].
be
able
to
return
to
However, Ms. Forrest
determined that unskilled jobs in the light category existed
within the national economy that someone with Plaintiff’s RFC
could perform.
Those jobs included a machine operator or hand
packer [Tr. 55].
IV. Analysis
Plaintiff
argues
that
the
Court
should
reverse
the
Commissioner’s decision to deny him benefits because the ALJ
erred in determining that Plaintiff retained the RFC to perform
light work.
It is Plaintiff’s position that he is limited to
performing no more than sedentary work, which would result in a
determination
that
he
is
disabled.
Defendant
responds
that
substantial evidence exists to support the ALJ’s finding and the
Commissioner’s decision that Plaintiff is not disabled, and that
Plaintiff did not meet his burden in showing that he is limited
to
sedentary
work.
Defendant
9
further
argues
that
the
ALJ
properly considered Dr. McKenzie’s opinion, and that he did not
limit Plaintiff to carrying less than 15 pounds.
Substantial evidence exists to support the ALJ’s finding
that Plaintiff is not disabled.
The ALJ considered Plaintiff’s
entire record in determining that he was capable of performing
light work [Tr. 14-19].
Light work involves “lifting no more
than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.”
20 C.F.R. § 404.1567(b). The
ALJ concluded, however, that Plaintiff cannot perform a full
range of light work due to certain limitations.
Because this
placed Plaintiff between two RFC levels, the testimony of a
vocational expert was necessary.
See Anderson v. Comm'r of Soc.
Sec., 406 F. App'x 32, 35 (6th Cir. 2010).
Where a claimant's RFC is in between two exertional
levels . . . a VE is brought in to testify as to
whether a significant number of jobs exist in the
national economy that a hypothetical individual with
the claimant's limitations can perform [, and] the ALJ
may rely on the VE's testimony to find that the
claimant is able to perform a significant number of
jobs.
The
economy
VE
for
testified
that
jobs
a
with
Plaintiff’s
person
existed
within
RFC
and
the
national
limitations,
including jobs as a machine operator or hand packer [Tr. 55].
The ALJ properly relied upon this testimony to determine that
Plaintiff was not disabled.
See id.
10
The ALJ also properly relied upon the testimony of state
agency consultants Dr. Reed and Yolande Tingle, whose opinions
along with that of Dr. McKenzie provide substantial evidence—
that is, more than a scintilla of evidence—that Plaintiff has
the RFC to perform light work with certain limitations and is
not disabled.
While
Dr.
See Cutlip, 25 F.3d at 286 (citations omitted).
McKenzie
diagnosed
Plaintiff
with
chronic
shoulder
pain and degenerative change of the cervical and thoracic spine,
he determined that Plaintiff should be able to lift and carry
objects
less
Tingle
also
limitations,
than
15
found
he
pounds
that
could
without
while
still
limitations
Plaintiff
occasionally
frequently lift 10 pounds [Tr. 64-5].
had
lift
20
[Tr.
228].
exertional
pounds
and
Dr. Reed also found that
Plaintiff could occasionally lift 20 pounds and frequently lift
10 pounds, and that Plaintiff could also stand, walk or sit for
about 6 hours [Tr. 89].
These findings are consistent with 20
C.F.R. § 404.1567(b) for an RFC determination of light work, and
constitute substantial evidence that supports the ALJ’s finding
and the Commissioner’s decision that Plaintiff is not disabled.
Therefore, the ALJ’s opinion must be upheld.
Even
if
conflicting
evidence
exists
that
supports
a
conclusion contrary to the one reached by an ALJ, the ALJ’s
opinion will be upheld if supported by substantial evidence.
See Rudd v. Comm'r of Soc. Sec., 531 F. App'x 719, 727 (6th Cir.
11
2013)
(citations
omitted).
Although
Plaintiff
contends
that
consultative examiner Dr. McKenzie concluded that he was limited
to lifting and carrying objects less than 15 pounds, the record
does not support this conclusion.
Dr. McKenzie stated that
Plaintiff “should be able to . . . lift/carry some objects less
than 15 pounds without limitations” (emphasis added) [Tr. 228].
Dr. McKenzie did not state that Plaintiff was unable to carry
more than 15 pounds, only that he could carry less than 15
pounds
without
issue.
The
ALJ
properly
considered
Dr.
McKenzie’s testimony, noting his opinion that Plaintiff could
only perform a reduced range of light work [Tr. 17].
V. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [DE 10]
be, and the same hereby is, DENIED;
(2)
that Defendant’s Motion for Summary Judgment [DE 12]
be, and the same hereby is, GRANTED.
This the 21st day of July, 2014.
12
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