Abrams v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: (1) Plt's 10 Motion for Summary Judgment is DENIED; and Dft's 11 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 4/14/2015. (STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ROBIN MARY ABRAMS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

Case No. 5:13-cv-415-JMH

MEMORANDUM OPINION & ORDER

***

This

matter

is

before

the

Court

upon

cross-motions

for

summary judgment (DE 10, 11) on Plaintiff’s appeal, pursuant to
42

U.S.C.

§

405(g),

of

the

Commissioner’s

denial

of

his

application for disability insurance benefits. The Court, having
reviewed

the

record

and

the

parties’

motions,

will

deny

Plaintiff’s motion and grant Defendant’s motion.
I.
The Administrative Law Judge (“ALJ”), conducts a five-step
analysis to determine disability:
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.
1 

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
claimant

reaches
is

not

the

fifth

disabled,

step
the

without
burden

a

finding

that

the

transfers

to

the

Secretary.” Id.

II.
Plaintiff was thirty-eight years old at the time of the
ALJ's decision (Tr. 21, 199). She had a GED education and past
relevant work as a cashier, maid, driver, and assembler (Tr.
221, 242). Plaintiff alleged she was disabled due to anxiety,
2 

depression,

PTSD,

and

Plaintiff

filed

insurance

benefits

neck

and

applications
and

back
for

Supplemental

problems

(Tr.

disability,
Security

220).

disability

Income

(SSI)

in

January 2011, alleging she became disabled on May 15, 2010 (Tr.
195-205). An ALJ held a hearing in August 2012 and issued a
decision in September 2012 finding Plaintiff not disabled (Tr.
7-21, 29-68).
The ALJ considered Plaintiff's claim using the five-step
sequential
three,

evaluation

the

ALJ

degenerative

process

found

disc

(Tr.

Plaintiff

disease

of

12-21).
had

the

At

severe

cervical

steps

two

and

impairments

and

lumbar

of

spine;

depressive disorder; and generalized anxiety disorder with panic
features (Tr. 12). The ALJ then found Plaintiff retained the
residual functional capacity (RFC) to perform a limited range of
light work, except she can only occasionally push and pull with
the

upper

extremities,

frequently

climb

ropes

scaffolds

or

ramps
or

stoop,
and

kneel,

stairs,

crawl;

she

and

but

crouch;

never

must

climb

avoid

she

can

ladders,

concentrated

exposure to extreme cold, humidity and vibration and avoid all
exposure to unprotected heights (Tr. 14). As for Plaintiff’s
mental limitations, the ALJ found that Plaintiff is limited to
simple,

repetitive

infrequent

tasks,

interaction

with

with

co-workers
3 

no

more
and

than

casual

supervisors

and
in

a

nonpublic work environment, and she requires a low-stress work
setting with no fast-paced assembly lines or production goals or
quotas (Tr. 14). At step four, the ALJ found Plaintiff could not
perform her past relevant work (Tr. 19).
The

ALJ

then

considered

whether

Plaintiff

could

perform

other work in the national economy and using the testimony of a
vocational expert (VE), the ALJ found Plaintiff could perform
other

work

economy

existing

such

as

in

significant

commercial

numbers

cleaner,

inspector/tester/grader/sorter

(Tr.

in

laundry

20-21,

the

national

worker,

61-66).

The

and
ALJ

therefore found Plaintiff was not disabled (Tr. 21).
The Appeals Council denied Plaintiff’s request for review
on November 15, 2013 (Tr. 1-4). Plaintiff has exhausted her
administrative remedies, and this case is ripe for review under
42 U.S.C. §§ 405(g), 1383(c)(3).
III.
Judicial review of the ALJ’s decision is limited to an
inquiry

into

substantial

whether

evidence

were applied.

the
and

ALJ’s
whether

findings
the

were

correct

supported

legal

by

standards

42 U.S.C. § 405(g), Warner v. Comm'r of Soc.

Sec., 375 F.3d 387, 390 (6th Cir. 2004); Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997). Substantial evidence is “more
than a scintilla of evidence, but less than a preponderance; it
4 

is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cutlip v. Sec’y of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). This Court may
not try the case de novo, resolve conflicts in the evidence, or
decide questions of credibility. Id.

“As long as substantial

evidence supports the Commissioner's decision, we must defer to
it, even if there is substantial evidence in the record that
would

have

supported

an

opposite

conclusion....”

Warner,

375

F.3d at 390 (quoting Wright v. Massanari, 321 F.3d 611, 614 (6th
Cir. 2003); Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997))
(internal quotation marks omitted).
IV.
In her Motion for Summary Judgment, Plaintiff asserts that
ALJ

should

consulting

have

given

physicians,

more
Drs.

weight
Atcher

to

and

the
Ford,

examining medical expert, Dr. Dixie Moore.

two
over

examining,
the

non-

Dr. Moore provided

opinion testimony and stated at the hearing that the examining,
consulting

physicians

were

relying

on

Abrams’

subjective

complaints and were not referencing the results of examinations
or testing contained in their reports.
argues,

however,

that

the

record

The ALJ agreed.
does

not

support

Abrams
that

conclusion because Dr. Ford, in particular, outlined the testing
procedures

performed

during

his
5 

examination

of

the

claimant,

including the Rey-15 Item Test, which demonstrated that she was
not exhibiting faking or bad behaviors during the examination
(Tr. 592), and the BDI-II and BAI, which indicated that she was
experiencing severe levels of depression and anxiety.
93.)

Coupling

findings

of

a

these

results

depressed

and

with

Dr.

pessimistic

Ford’s
mood,

(Tr. 592examination

flat

affect,

notably restless motor activity, and tense facial expressions
(Tr. 591-92), he urges that the ALJ could not, based on the
evidence before him, conclude that Dr. Ford’s findings were not
supported by testing and examination.
that

the

findings

upon

examination

Ultimately, he argues
with

respect

to

her

limitations should not have been summarily disregarded by Dr.
Moore or the Commissioner.
Generally, a treating physician’s opinion receives the most
weight. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1); Ealy v.
Comm’r

of

Soc.

Sec.,

594

F.3d

504,

514

(6th

Cir.

2010).

However, in a case where there is no treating source and there
are only non-treating, examining sources, the agency generally
gives more weight to opinions from sources who have examined the
claimant

than

to

those

opinions

from

sources

that

have

not

examined her. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1);
Ealy, 594 F.3d at 514.

In assessing what weight to give the

various opinions, the ALJ considers the factors listed in the
6 

regulations, such as the consistency of the opinion with the
other evidence, whether the opinion is supported by the other
evidence in the record, the specialization of the doctor, and
other factors. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Medical
experts are considered experts in the Social Security disability
programs and their opinions may be entitled to great weight if
the

evidence

supports

their

opinions.

404.1512(b)(6),

404.1527(f)(2)(i),

416.927(f)(2)(i),

(iii);

(S.S.A. 1996).

SSR

96-6p,

See

(iii),
1996

WL

20

C.F.R.

§§

416.912(b)(6),
1996

WL

374180

Moreover, the testimony of a medical expert may

be used to discredit a treating physician's opinion. See Loy v.
Secretary of Health & Human Servs., 901 F.2d 1306, 1308-10 (6th
Cir. 1990) (ALJ properly relied on opinion of medical advisor
over opinion of treating physician); Atterberry v. Secretary of
Health & Human Servs., 871 F.2d 567, 570 (6th Cir. 1989) (ALJ
properly relied on testimony of medical advisor whose opinion
was based on a review of the medical evidence and claimant's
testimony).
In
Plaintiff

the
in

matter
April

before
2011

the
(Tr.

Court,

Dr.

503-06).

On

Atcher

examined

examination,

he

observed that she had good eye contact but was fidgety with her
hands; her speech was normal; she had logical and goal-directed
thoughts; she was mildly depressed and anxious, but she was
7 

friendly and cooperative; and her memory was intact (Tr. 504).
Dr. Atcher also noted Plaintiff’s own allegations and complaints
about being nervous and having a social anxiety (Tr. 504). Based
on

observations

and

Plaintiff’s

subjective

complaints,

Dr.

Atcher opined that Plaintiff could manage her own funds; that
she

could

reliably

carry

through

on

simple

tasks,

but

not

complex directions; and that she would not respond well to the
usual pressures of work due to social anxiety and poor memory
(Tr. 504).
Dr. Ford then examined Plaintiff in May 2012 (Tr. 590-98).
Plaintiff reported to Dr. Ford that she had stopped taking her
medications
591).

Dr.

because
Ford

she

observed

believed
that

they

were

Plaintiff

not

had

helping

restless

(Tr.
motor

activity; her attention and concentration were somewhat affected
by her anxiety; she had normal memory capacity; although her
mood was depressed, she had normal speech, appropriate thought
content and adequate judgment, even with some gaps in insight
about her treatment (Tr. 591-92). Dr. Ford also administered
several tests to Plaintiff (Tr. 592-93). One test indicated that
Plaintiff was not malingering and that she could read on at
least a twelfth grade level (Tr. 592). The other test measured
Plaintiff’s self-reported symptoms and attitudes associated with
depression and anxiety (Tr. 592). According to Plaintiff’s self8 

report, she was experiencing severe depression and anxiety (Tr.
592-93). Based on this information, Dr. Ford opined Plaintiff
would not be able to sustain full-time employment because of her
emotional impairments (Tr. 595).

Dr. Ford also completed a

medical source statement opining on Plaintiff’s limitations (Tr.
596-98). The form defines a fair ability as the “ability to
function in this areas is limited, but satisfactory” and defines
“poor” as the “ability to function in this area is seriously
limited but not precluded” (Tr. 596). Dr. Ford opined Plaintiff
had a poor ability in such areas as relate to co-workers, deal
with

the

public,

deal

with

work

stress,

relate

with

predictability in social situations, and demonstrate reliability
(Tr. 596-97). Dr. Ford opined Plaintiff had a fair ability in
areas such as following work rules, using judgment, interacting
with

supervisors,

functioning

attention/concentration,

independently,

maintaining

personal

maintaining

appearance,

and

behaving in an emotionally stable manner (Tr. 596-97).
The
concluded

ALJ

gave

that

these

they

opinions

were

limited

founded

weight

heavily

on

because

he

Plaintiff’s

subjective complaints and because they were not, in his opinion,
consistent with the other medical evidence (Tr. 19). The ALJ may
give less weight to an opinion that is not based upon objective
medical evidence and relies only on subjective complaints. See,
9 

e.g., Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 391 (6th Cir.
2004). In this instance, Dr. Atcher and Dr. Ford’s opinions are
based primarily on subjective complaints and self-reports (Tr.
503-06, 590-98). As the Commissioner explains, while Dr. Ford
did administer assessments to Plaintiff during the evaluation,
the

Beck

Depression

Inventory

and

the

Beck

Anxiety

Disorder

“measure the symptoms and attitudes associated with depression
and anxiety” and are based on Plaintiff’s responses and what she
indicated were her most severe symptoms (Tr. 592). Dr. Atcher’s
opinion was also based on Plaintiff’s subjective complaints and
demonstrates

some

internal

inconsistency

(Tr.

503-06).

For

example, Dr. Atcher noted in his observations that Plaintiff was
only mildly depressed and that she had intact memory (Tr. 504).
Dr.

Atcher,

however,

then

opined

that

Plaintiff

could

not

reliably carry out complex tasks because of a short attention
span

and

poor

short

term

memory

(Tr.

504).

While

he

also

observed that Plaintiff was friendly and cooperative during the
examination, he found her to be fidgety, then opined that she
would

not

respond

well

to

the

usual

pressures

of

the

work

environment because of social anxiety and panic attacks (Tr.
504).

The

Commissioner

points

out

that

Dr.

Atcher

did

not

observe social anxiety or panic attacks during his time with
Plaintiff.

Rather, his only mention of social anxiety and panic
10 

attacks

comes

from

Plaintiff’s

self-description

of

a

social

phobia (Tr. 504).
Ultimately, there is evidence in the record to support the
reasons

provided

by

the

ALJ

for

giving

less

weight

to

the

opinions of the examining physicians and to credit Dr. Moore
over

the

two

examining

physicians

because

her

opinion

was

consistent with the other evidence in the record. Although Dr.
Moore did not treat or examine Plaintiff, she reviewed all the
relevant medical evidence, and her opinion is supported by the
objective medical findings and consistent with the record as a
whole.

See

20

C.F.R.

§§

404.1527(d)(3),

(d)(4),

(f)(2)(iii),

416.927(d)(3), (d)(4), (f)(2)(iii); SSR 96-6p, 1996 WL 374180.
The Court concludes, as the Commissioner urges, that the ALJ
properly gave great weight to Dr. Moore's opinion (Tr. 18-19).
See Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001); Barker
v. Shalala, 40 F.3d 789, 794-95 (6th Cir. 1994); Loy v. Sec'y of
Health & Human Servs., 901 F.2d 1306, 1308-10 (6th Cir. 1990).
V.
The Court notes, as well, Plaintiff’s argument that the ALJ
erred

when

he

failed

to

include

Dr.

Moore’s

opinion

that

Plaintiff had a fair to poor ability to demonstrate reliability
(Tr. 47).

However, the RFC is a reflection of what a claimant

can still do. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1);
11 

SSR 96-8p, 1996 WL 374184, at *2 (“RFC does not represent the
least an individual can do despite his or her limitations or
restrictions, but the most.”). Dr. Moore’s testimony regarding
reliability
suggesting

was

that

that,

at

Plaintiff
best,

she

had

a

would

fair
have

to
a

poor

fair

ability,

ability

to

demonstrate reliability (Tr. 47). According to the definitions
provided in Dr. Ford’s assessment form, a fair ability means the
ability to function in that area is limited but satisfactory
(Tr. 596). Further, Dr. Moore’s opinion is consistent with Dr.
Atcher’s

opinion

that

Plaintiff

retained

the

ability

to

be

reliable for simple tasks and directions (Tr. 47, 504). The ALJ
limited Plaintiff in the RFC to simple, routine work (Tr. 14).
Further limitations are not supported by the record, and the
Court concludes that the ALJ was not required to include those
limitations in the RFC or the hypothetical question that were
not credible. See Lee v. Comm’r of Soc. Sec., 529 Fed. App’x
706, 715 (6th Cir. 2013); Casey v. Sec’y of Health & Human
Servs.,
properly

987

F.2d

assessed

1230,
the

1235
various

(6th

Cir.

medical

1993).
opinions

Thus,
in

the

ALJ

evaluating

Plaintiff’s RFC.
VI.
Finally,

Plaintiff

argues

that

the

Commissioner

did

not

meet his burden to demonstrate that there were a significant
12 

number

of

Plaintiff

other

jobs

could

existing

perform

in

the

because

the

national

economy

vocational

that

expert’s

testimony, on which the ALJ relied in reaching his conclusion,
did not include a limitation on her reliability.

As the Court

has concluded that it was not error to omit that limitation, as
explained above, there is no merit to this argument.

Because

the hypothetical question presented to the VE is supported by
substantial evidence, the VE’s testimony in response identifying
specific jobs that such an individual could perform constitutes
substantial evidence supporting the ALJ’s decision. See Foster,
279 F.3d at 356-57; Varley v. Sec'y of Health & Human Servs.,
820 F.2d 777, 779-80 (6th Cir. 1987).
Nor was the hypothetical question and the VE’s response to
it insufficient because it somehow demonstrated that there is
limited access to the job market for Plaintiff.

Even assuming

that the ALJ had accounted for an additional restriction arising
out of Plaintiff’s poor ability to relate to co-workers and deal
with work stress, such that the number of available jobs would
be reduced by 50% as indicated by the VE, the VE still testified
to

a

significant

economy,

which

is

number
the

of

jobs

standard

existing
considered

in
by

the
the

national
ALJ

in

determining whether a claimant is disabled. See 20 C.F.R. §§
404.1566, 416.966; Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir.
13 

1999). Here, even with a 50% reduction, the VE identified a
significant number of jobs.

The commercial cleaning job would

have 4,000 jobs in the region and 287,500 jobs nationally; the
laundry worker job has approximately 1,000 in the region and
75,000 jobs nationwide; and the inspector/grader/tester/sort has
approximately 1150 jobs in Kentucky and 63,500 jobs nationwide.
The Sixth Circuit has held in other cases that fewer regional
and national jobs than described here constitute a substantial
number. See, e.g., Martin v. Comm’r of Soc. Sec.,

170 Fed.

App’x 369, 375 (6th Cir. 2006) (finding 870 jobs in geographic
region a significant number); Ellison v. Comm’r of Soc. Sec.,
101 Fed. App’x 994, 997 (6th Cir. 2004) (finding 3,850 jobs in
region a significant number); Stewart v. Sullivan, 904 F.2d 708
(6th

Cir.

1990)

(Table)

(125

jobs

in

region

and

400,000

in

national economy significant). Thus, the ALJ properly relied on
the VE testimony in finding that Plaintiff was not disabled
because there were a significant number of jobs in the national
economy that Plaintiff could perform.
VII.
Ultimately, Plaintiff has not met her burden of proving her
condition

caused

disabling

limitations.

See

42

U.S.C.

§§

423(d)(5)(A), 1382(a)(3)(H)(i); 20 C.F.R. §§ 404.1512(a), (c),
404.1529(a), 416.912(a), (c), 416.929(a); Foster, 279 F.3d at
14 

353; Bogle, 998 F.2d at 347. The ALJ properly considered the
relevant evidence and performed his duty as the trier of fact of
resolving any conflicts in the evidence. See Walters, 127 F.3d
at 528. Substantial evidence supports the ALJ's assessment of
Plaintiff's RFC and hypothetical question to the VE. Therefore,
the VE's testimony provides substantial evidence to support the
ALJ's

finding

that

Plaintiff

could

perform

other

work.

See

Foster, 279 F.3d at 356-57; Varley v. Sec'y of Health & Human
Servs.,

820

F.2d

777,

779-80

(6th

Cir.

1987).

Substantial

evidence supports the ALJ's findings and his conclusion that
Plaintiff was not disabled within the meaning of the Social
Security Act.
For all of the reasons stated above, the Court concludes
that

Summary

Judgment

in

favor

of

Defendant

is

warranted.

Accordingly, IT IS ORDERED:
(1)

that Plaintiff’s Motion for Summary Judgment [DE 10]

is DENIED; and
(2)

that Defendant’s Motion for Summary Judgment [DE 11]

is GRANTED.
This the 14th day of April, 2015.

15